Encroachment경계 침범, 인크로치먼트

What is it?

An encroachment is when part of a building or structure crosses the property line and sits on someone else’s land. Fences, sheds, the corner of a garage, roof eaves, decks, driveway paving, air-conditioner units and steps are common examples.

It goes both ways. Your structure may be over the neighbour’s line, or the neighbour’s structure may be on your land. Front steps or a wall that extend onto the city’s road allowance are encroachments too.

Even a few centimetres count. It may cause no trouble today, but it surfaces as a dispute when you sell, build a new fence or add on to the house.

How do you find out?

• A survey (SRPR): a licensed Ontario Land Surveyor measures the boundaries and the position of structures and draws them. Anything over the line is shown on the plan and in the report. The surveyors’ association (AOLS) says only a surveyor holding a Certificate of Authorization may do legal boundary surveys.
• Limits of an old survey: a fence, shed or deck built after the survey is not on it. If the seller’s survey is old, it may not match what is there now.
• A fence is not the boundary: fences are often put where it was convenient, not on the line. The boundary is fixed by the surveyor’s markers in the ground (iron bars) and the registered plans.
• The neighbour’s new survey: encroachments often come to light when the house next door is sold or the neighbour surveys before building a fence.
• The title search: if earlier owners registered an encroachment agreement or an easement, it turns up in your lawyer’s title search.

Does long use make it mine?

No. Section 51 of Ontario’s Land Titles Act says that no one can gain an interest against the registered owner of Land Titles land by any length of possession. If your home is registered under Land Titles (your lawyer confirms this from the parcel register), a neighbour who has used a strip of your yard for decades does not own it.

There is an exception. Section 44 of the same Act says registered land remains subject to any title the adjoining owner has already acquired by possession or improvements. Section 44 does not say when such a right must have arisen, but because of section 51 it is usually one that arose before the land moved into Land Titles, under the old Registry system. An old fence line or driveway may carry such a right, so your lawyer should check the type of title (for example a converted title) and its history.

How it is resolved

Whichever route you take, the document must be registered to bind the next owner. A verbal deal ends when the neighbour changes.

What about fences?

Ontario’s Line Fences Act says an owner may build and maintain a fence to mark the boundary (section 3). Where the Act applies, an owner in a dispute over sharing the work or cost can apply to the municipal clerk to have fence-viewers decide each side’s share (section 4 (1)).

Toronto is different. The City says the Line Fences Act (except section 20, about former railway lands) does not apply in Toronto and that the City has no role in disputes about the location or cost of boundary fences. Fence height, materials and construction are set by the City’s Fence Bylaw, and for neighbour disputes the City points to free community mediation through TNG Community Services.

Outside Toronto (Markham, Vaughan, Richmond Hill, Mississauga and so on), ask the city whether it runs the Line Fences Act process and what its own fence by-law says.

Does title insurance help?

An owner’s title insurance policy often covers loss from an encroachment that existed when you bought but that you did not know about. This is why many lawyers suggest title insurance instead of a new survey.

There are limits. The policy does not tell you where the boundary is, it does not cover a structure you build after buying, and problems you already knew about may be excluded. Check the exact coverage and exclusions in your policy and ask your lawyer.

Example

What to watch out for when buying

• Ask the seller for any existing survey and compare it with the actual fence, shed and deck positions. Tell your lawyer about anything that differs.
• The standard contract usually does not require the seller to provide a new survey. If you plan a fence or an addition, consider making a new survey a condition or ordering one yourself.
• If the title search shows an encroachment agreement, an easement or an encroachment agreement with the city, read the document to learn its conditions.
• If front steps or a wall extend onto the city’s road allowance, a permit or agreement may be needed depending on the city. In Toronto, check with 311 or the responsible division.
• Settling while you are on good terms with the neighbour is cheapest. A dispute that grows can end in court and puts off buyers when you sell.