Casual Legal: Use of municipal roads by third parties

By Ben Throndson
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider

This article addresses how a municipality may authorize a third party to use a road under the municipality’s direction, control and management.

Under section 16 of the Municipal Government Act (the MGA), legal title to all roads in a municipality (other than a city) is vested in the provincial Crown. Legal title to roads in a city is vested in the city unless otherwise specified in a different piece of legislation, or an agreement. Note that for the purposes of the MGA, a “city” only refers to municipalities legally designated as cities. It does not include municipal districts, villages, towns, counties, summer villages, or any other type of municipality.

Practically speaking, however, the matter of which entity has legal title to a given road has minimal impact on a municipality’s ability to deal with its roads. Section 18 of the MGA says that, subject to any other legislation, a municipality has the “direction, control and management of all roads within the municipality”.

A municipality wishing to allow a third party to use a road under its direction, control, and management may choose from these four options:

• Sale: A sale consists of transferring legal title to a road from the existing owner to a new purchaser. Before a sale occurs, the municipality must follow the road closure process set out in section 22 of the MGA, which requires a road closure bylaw (including a public hearing properly advertised under section 606). Note also that municipalities which are not cities must receive approval of the proposed bylaw from the Minister of Transportation and Economic Corridors before second reading.
• Lease: A lease consists of granting an exclusive interest in land to a third-party lessee, although title does not transfer to the lessee. Like a sale, a municipality must follow the road closure process prior to leasing the road. A lease agreement should specify, at minimum the duration of the lease, the rent payable, and provide for what circumstances entitle the municipality to terminate the lease agreement.
• Licence or permit: A licence or permit gives the licence holder specific authorization to use the road for a particular purpose. It does not grant an interest in land, nor does the license holder obtain exclusive possession. In terms of process, the municipality should make a bylaw governing the granting of licences or permits, then an agreement should be negotiated by the parties pursuant to that bylaw. Note that under s 13(1)(o) of the Traffic Safety Act, a licence or permit must be terminable on 30 days’ notice if the road is required for public use.
• Encroachment agreement: An encroachment agreement is a contract negotiated between the municipality and an adjacent landowner which allows for improvements made on land adjacent to the road to encroach on the road. The municipality may register the encroachment agreement against title to the neighbouring land under section 651.2 of the MGA.

No matter which option is chosen with respect to authorizing use of a municipal road by a third party, care should be taken to ensure that statutory requirements are met and that any contract negotiated protects the municipality’s interests.

To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or send an casuallegal [at] abmunis.ca (email) to reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or send an riskcontrol [at] abmunis.ca (email) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.