COOTE, HILEY, JEMMETT LIMITED
The following article taken from the September/October 2002 edition of Cottage Life magazine and is reproduced with permission.
Going Over the edge
Didn't know your shed was on your neighbour's land and now you have to tear it down? Tough. How a property survey could have kept you from crossing the line.
In 1969, Frank Recsei found the slice of cottage country he was looking for, a nice piece of waterfront on Rebecca Lake, near Huntsville, Ont., with a bargain-priced backlot that made the property even more perfect. Recsei bought the land and found a builder to make the cottage dream a reality. The contractor picked a building site, installed the piers for a prefab cottage with a carport, and cut in a driveway. Soon, the place was built and the Recseis cottaged happily for three decades until two years ago, when they decided to sell. It wasn't hard to find an interested purchaser after all, it was a lovely property but when the prospective buyer had a survey done on the lot, Recsei was shocked to discover that his cottage foundation had been built too close to the property line, putting his carport smack dab on his neighbour's land. And the driveway encroached as well, cutting a swath across land he didn't own. "The property had been bought and sold a number of times and I did not have a new survey done," says Recsei. "I got the lot plan from the seller, gave that to the contractor, and basically left it to him." For the buyer, obviously, the deal was off. And Recsei's neighbour was none too happy to discover the encroachment either. To meet the setback requirements, Recsei was forced to hire another contractor to dismantle the offending carport and recut the driveway, out-of-pocket expenses that cost him more than $5,000. Fortunately, the buyer liked the property enough that he was willing to wait for the changes to be done, but it still set the deal back almost six months. Lesson learned? "If your existing survey is not very recent, get a new one," Recsei says.
While Recsei's story had a relatively happy ending, many problems caused by not having a property survey or relying on an out-of-date survey are not so easily rectified. Bill McGrath, a real estate broker with Century 21 in Huntsville, has seen the gamut, from vendors selling the wrong lot to access roads that aren't on the right property to purchasing waterfront properties that don't actually have any lake frontage. "Getting a proper survey is absolutely critical because there are often many mistakes that have been made over the years, especially with the older cottages we have around here," McGrath explains. "A survey gives you the security of knowing you are on the right lot, the building is on the right property and within the boundaries of that property."We all know cottages are special, but particularly so when it comes to surveys. City properties are simple by comparison, as most lots are created through an organized plan of subdivision and have been around long enough and bought and sold enough times that municipal requirements and boundaries rarely come into dispute. Property in cottage country is a whole other ball game, according to Tom Pinckard, a Huntsville-based lawyer who also happens to be mayor of the Township of Lake of Bays. "There are so many idiosyncrasies about cottage properties, particularly lakefront properties, that unless people get a proper survey they really have no idea what it is they own or are purchasing," says Pinckard.
In Ontario, private land is created through a Crown patent, a document from the province that creates title in the public domain. If a patent hasn't been issued for the land, then it belongs to the Crown. In cottage country, that document often specifies that certain parts of a property are "not part of the deal" including the shoreline road allowance, a 66-foot-wide strip of land at the water's edge withheld by the Crown (though now mostly owned by the local municipality), registered and unregistered easements (like a hydro right-of-way), concession road allowances that run to the lake intermittently along the shore, proscriptive easements (that allow Trapper Jim access across your property because he's been traipsing across it for the last 30 years), and Crown reservations that withhold a portion of the land for, say, a 33-foot road allowance right through your property. "That's municipal land and you may or may not have some or all of your improvements located on one of them," says Pinckard. "I've been doing this for 30-plus years and I would say I get six to 10 monsters a year. I have one right now where the guy thought he had a deed and he owns none of the land the deed says he owns. His cottage and all his improvements are on the road allowance and on the concession road he happens to be where the two meet. So he owns nothing zero. He bought it without a survey and he went to sell it and lost his sale. Classic." Zoning requirements also come into play, things like setback requirements that stipulate how far buildings and improvements sheds, decks, and septic beds, for example must be from the water, lot lines, or the road. "What you think is the lot line may not be the lot line," Pinckard says. "If you're in non-compliance with municipal zoning bylaws you've got some real difficulties if you ever go to sell the property."
When you're considering a survey, whether it's one you already have or a new survey, it's important to note that there are two variations on the theme. One type of survey, known as a lot plan, or a "reference plan" in surveyor's parlance, is the most basic. It defines in a picture what the property description in your deed describes with words, outlining your property boundaries in relation to your neighbour's place. It will also indicate things like the shoreline road allowance, concession road allowances, Crown reservations, hydro easements, and the like. Essentially, a reference plan is a depiction of the property that is deposited at the registrar's office to transfer ownership. Another type of survey, the plot plan, or "real property report," in surveyspeak, is more detailed. In addition to all the information found in a reference plan, a real property report also shows the buildings and improvements on the property including things like decks, docks, carports, septic beds, driveways, footpaths even the humble outhouse and places them precisely on the lot. This information is vital because while a reference plan or a basic property description might show the property and outline the various and sundry road allowances and reservations on it, only a real property report can show whether your buildings and improvements encroach on these areas. More importantly, a real property report helps avoid encroachments due to municipal zoning requirements by showing, without a doubt, that if you build a deck onto your existing cottage, it will go over the sidelot setback or that a proposed septic bed will run onto a neighbour's property. "You want to know where the buildings are on the property to make sure they comply with local zoning bylaws," says Keith Beacom, an Ontario and Canada land surveyor who has been working in the Muskoka area since the 1950s. "If they were built before the bylaw was created they're in non-compliance, but they're allowed to stay. If they were built after that, you need the information to make sure they abide by the setbacks as required by the bylaw." Remember too that municipal bylaws are constantly changing, with some areas having very unique requirements. "The big thing nowadays, especially in the Township of Muskoka Lakes, is that there's a bylaw stating you can only build on 10 per cent of the area lying within 200 feet of the high waterline," explains John Hiley of Coote, Hiley, Jemmett land surveyors in Bracebridge. "So we go out and do a survey to tell them just how much area is there."
Curry Bishop, an Ontario and Canada land surveyor who's worked in the Haliburton area for 44 years (he recently sold his practice) says it's these quirks of municipal zoning, specific to a particular area, that can really muck up a land transfer or a property improvement if they're not identified by a surveyor. "The planning matters dictate different things in different municipalities and we have to adhere to them," he explains. At one time, Bishop juggled the zoning requirements of 10 municipal offices in Haliburton county alone, though thankfully that number has been reduced somewhat through amalgamation. "We're down to four townships here in this county, but in the old days you'd get out there and forget what one township required compared with another, particularly with side line offsets. A surveyor has to be up on all of the zoning bylaws."Whether it's a reference plan or a real property report, one area where an up-to-date survey is of special interest to cottagers has to do with the shoreline road allowance. In many areas, the municipality will sell the road allowance to the property owner. "If you don't own the road allowance it's basically public property," says Beacom. "Technically, someone could pull a canoe up there and pitch a tent, so it's definitely to an owner's advantage to own right to the water's edge so he has riparian rights." The wrinkle is that when these allowances were originally laid out, many of the lakes were at lower levels than they are now, due to the construction of Ontario's network of dams, installed to control water levels. This is important for cottagers who want to buy the road allowance because some or all of it might now be underwater information only a current survey can show. "It's to the advantage of the owner if part of it is flooded because you pay for it by the square foot," says Beacom.
Given all the potential pitfalls cottagers can encounter for lack of a property survey, why in the world would anyone choose not to get one? For starters, a survey is not technically necessary to transfer the ownership of property. All the registrar requires is a good description of the property found on the deed. If the description is really poor the registrar can demand a new survey, but this happens only rarely. Oftentimes, instead of paying for a proper survey, many cottagers opt to purchase title insurance, a relatively inexpensive policy that insures you against the risk of having a title defect that prevents you from marketing your property. "It's not intended to replace a survey, it's intended to supplement or replace the lawyer's certificate of marketability," says Tom Pinckard. "The problem is that very often because of the complexity of the titles and descriptions, which in cottage country can be very general or vague, solicitors repeatedly make the same mistakes on the same property if there's no survey."
The survey process itself starts in the office with a series of searches to dig up information on the property in question. "Generally, what we're looking for is all the historical information pertaining to a piece of property and the abutting properties around it," explains Hiley. "Then we'll go to the registry office and do a search there. We'll copy the abstract, the Crown patent, and all the subject dividing deeds, like the deed of the property when it was first created if it's been subsequently split up." If another surveyor has worked on the property at one time, or maybe a government ministry has surveyed the area, those files will be obtained if possible.
Once all the research has been completed, a survey crew will visit the property to determine its actual dimensions, the location of buildings and improvements on the site, and to set corner markers. This information then goes back to the office for trigonometric calculations, analysis and, if everything is hunky-dory, it's off to the draftsman who will lay it all out on paper. The final product will include a plan that illustrates the results of the field survey and the title search, including a written report that contains the surveyor's opinion about any contentious issues, like that sleeping cabin that has a concession road allowance running through the bedroom. When the survey is completed, copies are sent to the client and another is deposited on title at the registry office. "With most files there's more time spent inside than there is outside," says Hiley. "But people don't see that part, they just see that the survey crew was on site for four hours." Beacom feels his pain: "The office work can eat up as much time as the survey in the field because we're required to put much more information on our plans than we ever used to and it just adds to the cost."
So how much does a survey cost? Well, that's a tricky question in cottage country because it depends on the size and complexity of the property. In general, for a standard 1½-acre cottage lot, you can expect to pay anywhere from $1,200$2,500 (plus GST) for a real property report, depending on the obstacles faced by the survey crew in the field. "You might expect to find a post and it's not there. Or you've got hedges down boundaries, or buildings over the line, that kind of thing," Beacom explains. "So it takes more time to survey and time is money." Complicated jobs, properties with rambling decks and boathouses, or steep impassable terrain, cost more. "It's not a manufactured product like a refrigerator or a stove, where you know what your costs are and you know what your profit's got to be."
New surveys do cost money, so it's easy to see why some buyers and sellers are content to settle for the information found on an older survey, like the reference plan created when a property was originally subdivided or a real property report some wise purchaser paid for back in the '70s. Not a good idea, because any additions or improvements made to the property subsequent to that survey will not be on the plans, a perfect set-up for encroachment disasters. And really old surveys simply aren't as accurate or as detailed as they are today. "An up-to-date survey is going to show a lot more information than the one you got 20 years ago," explains Hiley. "Our standards, what must go on the plans, and what the municipality requires for zoning have changed substantially. Before, you didn't worry about the tile bed or the driveway coming out across the neighbour's property. And of course the municipality is always updating bylaws, so what may have been allowed last year is different this year." So how recent is a recent survey? Hiley had one survey go out of date over the course of a weekend, when a vendor with an encroaching garage tore the thing down just hours after it had been plotted on a real property report. "My view is that a recent survey is one that was done in the last month," says Pinckard. "If there have been no changes to the property, the survey is good forever. But as soon as you put an addition on it, you're back to where you were."
It's pretty clear that a survey provides peace of mind for anyone buying cottage property, but in talking to real estate agents, solicitors, and surveyors, it's also clear that many people aren't willing to cough up the dough for the security a survey provides. Penny-wise and pound-foolish? "The thing that astounds me is that people will come and buy a property for $1.5 million and they won't pay $1,500 for a survey," says Pinckard. "Everybody says 'It costs me money' but I'll tell you it saves a fortune in mistakes. No matter how much it costs, a survey adds way too much value to your property not to have one. As far as I'm concerned, that value-added component is a no-brainer."
A former editor of Cottage Life, David Zimmer is a Toronto refugee who lives in the bush near Huntsville, Ont.
The following article taken from the Bracebridge Progress, Wednesday, February 2, 2002 (The Bracebridge Examiner).
Coote, Hiley, Jemmett: Carrying on a survey tradition
Large client base keeps company busy
Way back when Muskoka was little more than rocks, lakes and bush, William Galbraith started a surveying practice in Bracebridge.
"He was the first person in Bracebridge to set up his own surveying business," says John Hiley, co-owner of Coote, Hiley, Jemmett Limited. "We still have all his original plans and field notes. In fact, we have the plans and notes of all the surveyors who had survey practices in Bracebridge prior to 1990."
Galbraith started the firm in 1885, as Bracebridge was growing and an increasing number of settlers were moving into the area.
In the early 1930s, E.L. Burgess purchased the practice from Galbraith, with whom he had articled. In 1955, Burgess sold it to Maurice Fitzmaurice and Don Boyer. In 1982, Basil Coote, John Hiley and John Jackson purchased it and with the recent transfer of Basil Coote's interest, the current owners are Hiley and Doug Jemmett.
"Although Basil Coote is no longer an owner, he is still employed on a part-time basis as a consultant and as a field survey party chief," says Hiley. "He's been an OLS (Ontario Land Surveyor) for 40 years and decided it was time to take it a bit easier."
The majority of the firm's practice is centred on the three large lakes, dealing mostly with seasonal clients who are buying, selling, building or otherwise developing.
A very large client base, which includes solicitors, real estate ages, land planners, contractors, local municipalities, engineering firms, snowmobile clubs and utility companies keeps everyone busy.
The firm has also completed several contracts for the Ontario Ministry of Transportation and other provincial and federal ministries.
Projects that involve the nine full- and four part-time employees range from topographic surveys for designing new structures, route surveys for roads, utility easements and snowmobile trails, property boundary surveys for real estate transactions, new subdivisions and dispute resolution, land severance and zoning applications, historical research which normally relates to dispute resolution issues, and a variety of other projects, all relating to land and the past, present and future development thereof.
Community Support
But it isn't all work for Hiley and Jemmett. The firm supports and is involved in local sports activities such as minor soccer, minor hockey and the Muskoka Kids Triathlon. Employee Jeff Inglis has coached the Coote, Hiley, Jemmett-sponsored soccer team for the past two summers, while Hiley has been a division convenor for two seasons. Hiley is also a director of the Ontario Association of Triathletes and manager of the Bracebridge Novice Rep Hockey Team.Professional Credentials
On a professional basis, Jemmett is a former manager of the Association of Ontario Land Surveyors Survey Review Department which audits survey firms to ensure that their work is completed in accordance with all applicable statutes, regulations and standards of practice.Hiley is a past chairperson of the AOLS Academic and Experience Requirements Committee which monitors articled survey students and examines them to determine their suitability for entrance into the profession. He is now a member of the discipline committee.
Continuing education is also an important issue, as surveyors must be continually informed about the latest survey-related court decisions and the ever-changing technology that affects the profession.