Encroaching Buildings or Fences - Property Law Act, Section 32 #143
By Gerry Neely
If someone offers to bet on favourable odds to you that he can subdivide a parcel of land and register title to part of it in his name without ploughing through the usual subdivision process with all of its approval requirements, don't take the bet. The reason-Section 32 of the Properly Law Act. This section allows a Court to deal with the problem of a building or a fence which encroaches on adjoining land.
While the Court may order the removal of the encroachment, it can also validate the encroachment by giving the encroaching owner title to the land encroached upon, or an easement over it, upon payment of compensation. In one case involving two adjoining twenty acre commercially zoned parcels, one owner mistakenly and innocently constructed a $60,000 building which encroached partly upon the adjoining parcel. When a subsequent survey disclosed the encroachment, the Court was asked to settle the problem.
It agreed that the building should not be removed, not only because it was new and relatively expensive, but because its location on the adjoining property would not economically inconvenience the owner. The encroaching owner was ordered to pay annually an amount based on the area of the encroached land, its value, and the estimated life of the building.1
This section has been used to give title to an encroaching owner of a strip of land 8' wide by 128' long. A swimming pool encroached one and one-half feet onto the strip, which also contained a small moveable shed. A fence had been constructed on the adjoining owner's property to enclose the pool and shed. The position of the fence and the location of the shed and pool led the encroaching owner to believe that the strip was his.2
In another case the encroachment was a pie shaped wedge of lawn formed by rock retaining walls topped by a chain link fence enclosing lawn and shrubs and containing an area of about 315 square feet. The encroaching owner wanted to obtain title to this area to retain the value of his property and to improve that value if the property could be subdivided at a later date. The cost of removal and replacement of the encroaching walls and fence was only $747. The Judge ruled against the encroaching owner and ordered him to remove the encroaching material.3
The decisions in the foregoing cases were based upon the following statement of principle:
The discretion of the Court to allow the honestly mistaken person to retain...land on paying compensation is not one that is to be lightly exercised. . . [and] . . . the claimant must show that the balance of convenience is decidedly in his favour before he is permitted to retain another's land, or, that the equities preponderate in his favour within the framework of the statute.
This leads to the unusual case of the privately owned village of Paldi near Duncan on Vancouver Island, which covered an area of approximately forty acres in unorganized territory. In 1987 the owners discovered that a number of buildings as well as portions of the water and sewer systems serving the village encroached upon approximately 13 acres of an adjoining parcel.
An unopposed application was made to the Court, by which title to this 13 acre parcel was to be vested in the names of the registered owners of the remaining village lands. A separate title to this 13 acre parcel was registered in the name of the village owners solely upon the Order of a Judge made under the authority of Section 32.4
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