BIRPOA promulgated a plan to secure rights of way to the trails last summer. For $300, one can purchase an entitlement to all the major 66 foot wide trails and most of the smaller 20 foot ones. About 1/3 of cottagers already have these rights in their deeds, but many of us do not, though we all use the trails quite freely. Is it really necessary? No one is absolutely sure, but as society gets more and more litigious, it seems prudent to get things we have long assumed set into writing.

When we set out the plan, some cottagers voiced concerns and objections to some parts, especially to expanding existing rights of way that crossed over the middle of a few properties (most follow the rear or side property lines). In order to respond to these concerns, we have delayed implementation until after this year's AGM. We are revising the proposed trail ROW map to exclude any existing rights that go through a property, and will be walking the trails again to make sure our changes are appropriate.

 

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The Right of Way document below was presented at the 2009 AGM. It is subject to change as circumstances arise

 

Do you have a legal right of way to use Birch Island's internal trails?  Surprisingly, many of us do not.  BIRPOA presents a plan to obtain that right.

Birch Island's internal trails, originally conceived as roads, are a valued part of our island experience. The main trails are actually private property, predominantly owned by Birch Island Estates Limited ("BIEL") We all have and enjoy informal permission to use them.  Some of us also have a legal right of way.

There is no immediate threat to our use of the trails, no matter what our deeds say. But BIEL will change hands sooner or later, or will be dissolved. At that point there is no guarantee that the informal trail permissions will be continued.  The best way to insure our use of the trails in the future is to have a legal right of way attached to our deeds.

In consultation with the BIRPOA Executive, island resident John Feltmate has worked with attorney Richard Minard to craft a one-time plan for BIRPOA members to secure those rights of way at low cost. It will not be repeated.

How the plan works:

1.     BIEL has agreed to grant a right of way over the trails they own or control to any BIRPOA member who wants one, including the main trail.  There are several established secondary trails owned by others.  Our attorney will also attempt to obtain the necessary grants from those property owners, though this is not assured.

2.     Attorney Minard has done considerable preliminary research to determine the feasibility of this plan.  He will continue this research into ownerships and deeds, then create and obtain owner’s signatures on a “Grant of Right of Way”.  He will register it with the Land Registry office in Brockville and provide a copy to each participant. His work is being done on a contingent basis; his fee will rise and fall according to the number of participants.

3.     No deed will be changed at this time;  instead, the document (called a “Grant of Right of Way”) will establish the right of way.  When we sell or transfer our cottages, a new deed is routinely created and that new deed will incorporate the statement of right of way.  This saves us the costs of having new deeds prepared.

4.     Each participant will pay a fixed sum of $300.00.  That will cover all legal fees, direct costs incurred in securing documents and negotiating grants, and the costs of registering documents with the county.  This money will be held in the attorney’s insured escrow account until the project is completed. If the plan fails for some unanticipated reason, your money will be returned. (If there is a very high level of participation, the legal fees may decrease, in which case a small remainder will be given to BIRPOA for trail maintenance.)

What is the timetable? 

We are targeting having the plan completed within one calendar year. There may be contingencies that will delay that;  if so, BIRPOA will issue progress reports to all participants.

DO I NEED THIS?  ('read your deed')

It has been estimated that over half of island deeds lack a statement of right-of-way to the trails.  Others may have a partial right of way, and still others have complete rights of way.  Your deed is the key to determining your own status.

-If your deed makes no mention of a right of way, you are a candidate for this plan.

-If your deed mentions a right of way, compare it to the two alternative forms below.  If your deed contains ALL of the components listed, you are probably ok. Or ask your attorney for advice.  Both formats are valid, but one is in an earlier form, the other later.  (One caution:  Even if all components are included, there is a small chance that your deed may have been created without proper permissions for the right of way having been granted. This could lead to future problems.  Your attorney could check, or you could buy the current plan as a precaution.)

a. Early deeds will say something like "...a right of way in common with others...".  What is important here is the description that follows. This description will list all of the parcels of land that are affected by the grant.  The description must include:

* Lot 9 concession 6, lots 9 and 10 concession 7 in the Township of South Crosby

* R plan-19 Parts 36, 37, 38, 39, 40, and 41

* R plan-38 Parts 56, 57, 58, 59, 60, and 61

* R plan-52 Part 93

* R plan-61 Parts 87, 88, and 89

* R plan-62 Parts 124, 125, 126, 127, and 128

* R plan-101 Parts  129, 131, 130,142, 143,144, 145, 146, 149, and 150

* R plan-108 Parts 189, 207, 200, 199, 196, and 197

* R plan-109 Parts 148, 150, 151,155, 157, 160, 161, 164, 166, 168, 170,171, 173, and 181

b. The later deeds will make reference to Registrar's Compiled Plan 353 (RCP 353).  RCP 353 is a compilation of Plans R-17, R-19, R-38, R-52, R-61, R-62, R-101, R-108, and R-109 plus a number of other plans on the island not originally part of BIEL.  The rights of way are located on this plan.  The deed will go on to say something like "...a right of way in common with others...".  What is important here is the description that follows. This description will list all of the parcels of land that are effected by the grant.  The description must include:  

Part of Lot 31, Lot 35, part of Lot 39, part of Lot 41, part of Lot 82, Lot 94, part of Lot 107, part of Lot 111, part of Lot 126, Lot 128, Lot 130, part of Lot 131, part of Lot 132, part of Lot 136, Lot 140, Lot 141, Lot 142, Lot 143, Lot 144, and Lot 145

It should be noted that the right of way may only apply to part of the lot rather that the entire lot and the term "part of" might not appear in the description.   

-If your deed mentions a right of way but it doesn't match up with the specifications above, you could ask your attorney to do some research OR you could buy into the current plan.  Given current legal fees, it may actually be cheaper to buy into the plan.

I own two or more lots...

This plan will cover every piece of island property you own for one fee.  Just be sure to identify every lot when you sign up for the plan.

How did this arise?

While reviewing two deeds, a resident noted that one contained rights of way while the other did not.  Research followed.

Four decades ago, Birch Island Estates Limited created a development plan for much of the island.  They began selling lots on a time-payment basis as additional surveying and other activities continued.  Deeds were created for each early lot as contracts with buyers were signed, and those deeds were later filed with the county when payments had been completed.  Later deeds incorporated statements of right of way as they existed at a given time.  Still other cottagers bought lots not connected with BIEL;  these also provided no rights of way. The result is a bit of a legal tangle.  The current plan is intended to consolidate all the varieties of permissions into a common form and represent the best solution that appears to be available at this time.

How do I participate?

You must be a dues-paying member of BIRPOA to participate. The BIRPOA Executive is a body elected to look out for the interests of its members and this plan was crafted expressly for those members.

Complete the letter of intent attached and send it with a check for $300 to the address provided.  If you have questions. contact John Feltmate at (613) 824-1933 or (613) 359-5831.