Should homeowners own the beach also?

Most people dream of having a cottage or a home on the beach fronting a beautiful lake or the ocean. My mother and stepfather had such a home. It was on the north shore of the island of Oahu in Hawaii. Their two-bedroom home was right at the beach and the beach was several kilometers in length and their property ended at the high water mark and the beach extended approximately twenty meters to the ocean.

In Hawaii, no property owner owns the beach. What they do own is everything going back from the high water mark. Everything from the high water mark to the ocean is public. And the law in Hawaii is that between every five and six homes, there is a public walkway that leads to the beach. Fortunately for my parents and their neighbours, members of the public rarely swam in front of their homes because there is a public beach a few kilometers away that has all the amenities anyone would want, such as washrooms, changing rooms, a restaurant and plenty of parking spots.

Wasaga Beach in Ontario is a beautiful beach that borders part of Georgian Bay. The white sandy beach is quite wide and it is 14 kilometers in length, making it the longest fresh water beach in the world. It follows that a great many people own property at that beach, but anyone may use the beach.

Balm Beach is a short drive from Midland, Ontario and it also borders Georgian Bay. There is a couple living at the beach named John and Elisabeth Marion whose property is very close to a restaurant. When the restaurant built a patio onto the beach, the Marion extended a two-metre high cedar fence right to the water, thereby making it impossible for anyone walking on the beach past the Marion property do so without actually walking into the water first.

The Marions knew when they bought their property at the beach that there was a restaurant next to them and that many people would be crossing their property on the beach to get to or leave the restaurant. It is for this reason that I have no sympathy for them any more than I have sympathy for people who purchase their homes next to an abattoir. It goes with the territory so to speak.

Now what the Marions could have done is place a sign on the beach reminding the public that when they cross the beach to get to the restaurant, they are walking on private property and that they should treat the property with respect and not leave garbage on it. Instead of doing that, they chose to block it off entirely.

According to Elisabeth Marion, she and her husband only extended the fence after receiving opposition by way of people damaging the property with tractors, vandalism, and threats. “We’ve never stopped them from walking … never. Two weeks ago, that water was down about two feet, and they could easily walk. Since then, it’s come up quite a bit, so yes, now they have to walk in the water, but next week it might be down again. We can’t take down the fence from one week to another.”

Many felt the beach was public and resented the fence. Marion said he fears for his life because police are not acting to protect him from those opposed to his fence.

The couple who purchased the property 24 years ago, applied several years ago to have their property surveyed according to the ‘Provincial Boundaries Act’, after the restaurant’s patio was built, ending with a ruling stating that their property extends to the water's edge. Section 8.1 of the Act permits objections to be made. I don’t know if any objections were made. In any case, what this means is that the Marions actually own the land that crosses the beach and ends at the low water mark at the edge of Georgian Bay.

This should never have been permitted. Whoever authorized this to happen didn’t think of the consequences that would later follow. As a result, there has been a long-running dispute surrounding the construction of a two-metre high cedar fence on the popular beach which has turned ugly recently ending in violence and the destruction of a section of the fence. As a crowd of close to 200 people looked on, many cheering, a man armed with a chainsaw decided to take matters into his own hands and started slicing into the contentious fence, which has been a sore point for many beachgoers since its construction two years ago. Elizabeth Marion stated that since their home is on private property, they have the right to put up a fence just like any other person.

It’s that opinion that has created such a split in the township of Tiny, leaving more than just a figurative line drawn in the sand. What is at issue here is the issue of the public versus private access rights for the use of the beach.

There’s quite a history to this problem. The beaches in Tiny Township have been used by the public for some time, and now what’s happening is private interests are trying to exert their influence over the beaches and ban public use and access. The Marions’ fence is the key example of what is in store for the people who want to use the beach. In essence, the entire beach could be fenced off by all the homeowners whose properties may extend to the edge of the water.

It’s the way it’s been for as long as many people know. Just because the boundary is there, it doesn’t mean that historic rights of access and use should be denied. In fact, the decision that came down to extend the boundary specifically didn’t address historic rights of usage, and to my knowledge, these have never been addressed except by the construction of a fence.

Doug Luker, CAO of Tiny Township, admits the issue of beach access has been ongoing for some time, but says it boils down to property ownership and property rights. He said, “The township is made up of a number of public beaches and private beaches. We really only have jurisdiction over the public part of the beach.”

A member of an organization that intends to fight the ruling that permitted the Marions to build their fence across the beach said, “When the fence started (with the old council), we were there on day one to try to get them to stop it in its tracks. We believe there might have been a way to deal with it at the time,” he says. “They claimed there wasn’t any way to solve the problem so they (township) did nothing and the fence went up. Once it was up, the township’s power to take it down was greatly diminished.” He added, “Past council looked into the matter and came to the conclusion that, because it’s on private property, there wasn’t much they could do, because it’s not within the jurisdiction of the township.”

With the possible exception of family law, few areas of the law inspire litigation as bitter and as hostile as land boundary disputes. There is a way to deal with this problem. It is often referred to as squatter's rights or adverse possession. The law, in some circumstances, allows a trespasser or squatter to acquire ownership of someone else's property. What this means is that if someone uses part of your property for more than twenty years and you have not filed an objection to the use of your property by someone other than members of your family, you can no longer claim title to it. For example, if they build a road across your property and you have not filed an objection (such as sending the person using the road, a letter of objection within that twenty-year period.) you can’t stop them from using that road. Since members of the public have been using the beach that the Marions claim is theirs, and probably used it more than twenty years before the Marions purchased it without objection by the previous property owners, the land can be used by anyone wishing to use it.

If that procedure is valid in this particular instance, the township should go to court and demand that the fence be taken down and the public be permitted to use the beach up to the high water mark where the Marion’s fence should end.

If I owned property that extended to the water's edge, I certainly wouldn't want to do what the Marions did and alienate my neighbours and the townspeople by building a fence all the way to the water's edge and force those who use the beach to walk a long way to get to the restuarant. But then, I am not stupid like that couple is.