Private and public roads in your municipality


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Q: If our town doesn't own our roads, then who does and how does this affect our properties?

A: Towns generally own most roads. The private roads may ‘affect’ other properties but they are governed by laws that manage their co-existence with municipal and other private roads or properties.

For example, the Civil Code provides that when a land is enclosed and there is no access to the public road, the owner of the enclosed land has the right to require a right of way from a contiguous lot.

Development or not of private roads may also be governed by municipal by-laws. By-laws can affect lot sizes and how the territory is cut up. There may be development plans determining whether a local industrial park or ski centre can be implemented or is to be located within a certain zone. Municipalities verify that such privately funded work and roads meet the requirements of municipal by-laws.

Generally, owners assume the services on privately-owned roads and maintain them. Sometimes there may be agreements with municipalities for services such as snow clearing and owners are charged accordingly. I understand there are some municipalities that are reviewing providing public services when there is no compensation or a valid legal agreement, as the rules on this subject become increasingly clear through education and media coverage.

One example of a common rule described in legislation is found in Section 70 of the Municipal Powers Act. A municipality may maintain a private road open to the public by permission of the owner or occupant, on a request by a majority of the owners or occupants of the abutting property. Section 244.1 of the Act Respecting Municipal Taxation allows the municipality to charge for the services.

In the end municipalities really have the upper hand on roads in their territories for the collective good and development of their territory.

Under Section 67 and 68 of the Municipal Powers Act they have general powers to adopt by-laws governing any use of a public road, its access, and construction or maintenance.

Municipalities can purchase private roads and negotiate price, terms, and conditions. Sometimes it can just be negotiating a servitude with a right of passage for the public that may be sufficient without actually purchasing the road.

Municipalities also have the right to expropriate private roads, which power is used for a purpose that is generally in the public interest such as putting in sewers, etc. Councils, however, may try to acquire the roads, by mutual agreement, avoiding expropriation.

The Municipal Powers Act provides another avenue for municipalities to purchase private roads.

A road open to public traffic for 10 years or more becomes the property of a local municipality upon the observance of relatively easy formalities such as adopting a resolution identifying and claiming ownership of the road concerned. The law addresses publication requirements and third party claim rights. However the municipality cannot apply this law to a road on which it has charged taxes in the last 10 years.

Obviously the municipalization of private roads brings advantages for owners who would notably see their maintenance costs disappear. In some cases it permits better access for emergency services to residences along these roads.

Transparency on the purchase of private roads or providing services therefore, along with clear policies on the rules that apply, may go a long way in alleviating unneeded public concerns that are brought up regularly in town council meetings across Quebec.

In conclusion, private roads are part of our landscape and the applicable laws do provide a cohesive framework.

Please send your legal questions to editor@yourlocaljournal.ca

Website of law firm: vmaranda.com

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