Encroachments on Adjoining Property

Encroachments on Adjoining Property – Property Law Act #291

At times, a property owner may construct a wall, fence, walkway, or structure that partially encroaches upon adjoining property. There have been many cases in BC where pools, patios, decks, walls, buildings, driveways, stairs, septic fields and more have been built on neighbouring land. This typically occurs due to a misunderstanding of the common boundary line between the two properties, and is called Encroachment on Adjoining Property.

Decades ago, an owner whose property was encroached upon had the right to demand the removal of the encroachment. However, this legal stance was altered by the current Section 36 of the Property Law Act. Under this provision, if a building extends onto adjoining land or if a fence is incorrectly placed, enclosing adjacent land, the court has the authority to transfer the title of the encroached-upon or enclosed land to the owner responsible for the encroachment. Alternatively, the court may grant an easement over the land to the encroaching owner, provided compensation is paid to the owner of the encroached-upon land.

When assessing the fairness between both property owners in cases of encroachment, a judge must consider the balance of convenience. Three primary factors are typically analyzed in this context:

1. Knowledge of Boundary Line: The judge evaluates each party’s awareness of the correct boundary line before the encroachment occurred. Honest belief in the boundary’s location is crucial, and parties deemed negligent or fraudulent may not be entitled to relief.
2. Nature of Encroachment: The court examines whether the encroachment constitutes a lasting improvement and, if so, assesses the effort and cost involved in its removal. The permanence of the improvement and the difficulty and expense of relocation influence the court’s decision on granting relief to the encroaching owner.
3. Impact on Properties: Consideration is given to how the size of the encroachment affects the present and future value and use of the properties involved in the dispute. This factor plays a role in determining the appropriateness of the relief sought by the encroaching owner.

Buyer’s Real Estate Due Diligence

Before buying a property in BC, it is recommended to order a survey certificate and obtain an up-to-date copy of the Land Title. These will help determine the accurate boundary lines.

A survey certificate provides precise information on property lines concerning existing buildings and structures. This document can reveal instances where a neighbour might be encroaching on the property you are interested in purchasing. It can also highlight if the current property owner has structures infringing upon a neighbour’s property.

A Land Title Certificate outlines any granted easements or adjusted land portions of title to neighbouring properties. To ensure the prospective property is in good standing, it is essential to have your lawyer review all documents. This diligence can prevent potential legal conflicts with new neighbours by identifying and addressing any existing land encroachments.

How to avoid Encroachments on Adjoining Property

The Building codes in British Columbia stipulate that a building or dwelling should be constructed no closer than 5 feet from the property line. However, it’s important to note that each municipality in BC may have its own setback requirements for smaller structures like sheds. Before embarking on the construction of any standalone building, it is crucial to review your property’s zoning bylaws and consult local municipal regulations for specific setback rules and building guidelines. This ensures compliance with the applicable standards and avoids potential legal and construction complications.

Example cases: Encroachments on Adjoining Property

Several cases were adjudicated based on the considerations outlined. In each case AAA is the encroacher and BBB is the encroachee.

1. AAA and BBB owned adjacent sizable lots. AAA placed a mobile home on his lot, encroaching upon BBB’s intended construction site. The court found AAA negligent in determining property lines, and as the mobile home’s relocation was feasible, an order was granted for its removal, favoring BBB. (Wheeler v. Piggford, B.C.S.C., Victoria Registry, Reasons for Judgment, May 14, 1998.)
2. When BBB added a room to his house it was discovered that AAA’s retaining wall encroached onto BBB’s property. The cost of replacing the wall was approximately $30,000. AAA applied for a vesting order or an easement on the encroached-upon land. Recognizing an honest mistake and deeming the wall’s removal cost unjustified, the court ordered an easement in favor of AAA over the encroached-upon area, with compensation to be settled and paid to BBB. (Barrow v. Landry, B.C.S.C., Vancouver Registry, Reasons for Judgment, July 3, 1998.)
3. AAA’s sidewalk was mistakenly built over BBB’s property. Given the impracticality of relocation and the necessity of the sidewalk for AAA’s home access, the court favored AAA, granting an easement with a $500 compensation to BBB, valid until the access was no longer needed. (Dattolo v. Merlo, B.C.S.C., Rossland Registry, Reasons for Judgment, June 4, 1998.)
4. An easement to AAA constituted 4.2% of BBB’s property, compensation awarded to BBB equaled 4.2% of the estimated value of BBB’s property. (Vineberg v. Rerick, B.C.S.C., Chilliwack Registry, Reasons for Judgment, November 20, 1995.)

Can a Property Owner Remove an Encroachment?

The courts don’t look kindly of property owners unilaterally removing a structure that results in loss for the encroaching neighbour. Legal actions may not flavor the landowner when property damage occurs, urging caution in such situations.

In a notable Supreme Court case, an owner attempted to rectify a continuing trespass by jack hammering into an encroaching retaining wall. This action led to repercussions for the landowner, who had to cover the $6,300 repair cost for the retaining wall and compensate the encroaching neighbour for general, aggravated, and punitive damages.

If faced with boundary infringements, it is advisable to obtain a Land Survey Certificate for your property and seek amicable resolution. When an encroachment on adjoining property persists without resolution, taking proper legal precautions is recommended, avoiding self-initiated actions.

The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only.

Check our other blogs under Real Estate 101 – that might give you answers about buying or selling a home.