Rights of Property Owners Regarding Flooding

By Merovitz Potechin on Monday June 14, 2021.

As summer approaches and folks get back to their camps/cottages on the lake, it is a great time to do a refresher on riparian rights (rights inherent to lands where the property boundary is the high water mark of an adjacent body of water) and how they can help us understand how we can protect our land in the face of flooding and protect our water in the face of measures taken to mitigate that flooding.

Riparian Rights

There are four relevant rights that will attach to any property that abuts a waterway.

1. Right to Quantity – Riparian landowners have rights to customary flows of water entering and exiting their property.
2. Right to Quality – Water should enter and leave a property in its natural state.
3. Right to Proper Drainage – Water should be properly drained onto and off of a property.
4. Right to Accretion/Erosion – As the waterways naturally change levels, the land exposed by reductions in water levels become should become property of the landowner. Similarly, as shoreline is eroded this land is lost to the bed of the waterway and becomes property of the Crown. Note that for most waterways in Ontario, issues with these rights are mostly avoided based on the use of the ‘high water mark’ to determine property (vs. the use of the waters edge).

The applicability of each of these rights will depend on the jurisdiction you live in. While Ontario law recognizes, at least in part, these riparian rights, other jurisdictions have overridden some or all of these rights with specific legislation. All these rights can be relevant when trying to protect your land or your water from flooding and/or contamination.

Know Your Rights

Disputes around flooding are based on a number of different causes of action. Everything from beaver dams restricting flow, to improper/negligent release of blocked water/ice dams can cause an infringement of riparian rights. It is important to know your rights as a landowner on a waterway. Not only flooding/restriction of flow but also water contamination can infringe those rights. Individuals with an understanding of their rights and proper advice will be able to ensure their waterfront property remains a natural and pristine piece of paradise.

How We Can Help

If you have a property on the waters edge and have any questions about your riparian rights, contact the Disputes & Litigation Team at Merovitz Potechin LLP.