Legal Brief for June, 2020

Neighbouring Lot Encroachments

Oftentimes when homeowners build a backyard structure such as a deck or a shed they aren't sure of where the property line is between their lot and the next door neighbour's property.  "Well, I think its right about here" or "That's where the fence line was, must be right then" seem to be the way that most of us think when approaching a build that is close to the lot line with our neighbour.  We all go merrily ahead and complete building whatever it is that is our project, and since the neighbour (or succession of neighbours) never complain we assume that all is right with the world, or at least with what we put in place those many years ago.

When you eventually go to sell your property, and are required to have an updated survey done (also known as a real property report) you may find that you have a problem on your hands.  That survey may reveal that what you built was not entirely within your property but in fact, due to an error in your guess as to where the property line was, is encroaching a few cm., or perhaps substantially more, onto the neighbour's property.  Bingo!  The alert lawyer for the purchaser then stipulates that the encroachment must be either removed as part of the closing process or you must get a formal encroachment agreement signed with the neighbour and then have that agreement registered at the Land Titles Office.  You proceed to grit your teeth, likely you smack your forehead with the palm of your hand, and then you authorize your lawyer to "do whatever it takes" to deal with the encroachment, which ends up being an added legal cost on your sale expenses.

The moral of this story?  Its certainly not to stop building things in your backyard.  We all want to enhance the enjoyment of our own little corner of the world.  No, the moral is, in words similar to what a good carpenter will tell you, always "measure, mark, measure, and then cut".  Make sure you can identify precisely where the property line is, and then make sure your structure is built back from the line (and obtaining the required development and building permits from the City might be a good idea as well!).  A little leg work at the start may save yourself from a big hassle at a time when you least have the patience or energy to deal with it.