Encroachments on Adjoining Property – Property Law Act #291
By Gerry Neely
Occasionally a property owner builds a wall, fence, walkway or structure partly on adjoining property. This is usually the result of a misunderstanding of the location of the common boundary line between the two properties.
Decades ago an encroached-upon owner would have had the right to have the encroachment removed. The law was changed by what is now Section 36 of the Property Law Act. Where a building encroaches on adjoining land or a fence has been improperly located so it encloses adjoining land, the court can vest the title of the encroached-upon or enclosed land in the encroaching owner, or give an easement over it to the encroaching owner upon payment of compensation to the encroached-upon owner.
The test a judge must apply to treat both owners fairly is the balance of convenience between them. In analyzing this issue, the courts have considered three principal factors.
1. What was each party’s knowledge of the correct boundary line before the encroachment took place? Did each have an honest belief or were they negligent or fraudulent in determining the location of the boundary line? Only an honest belief should entitle the encroaching owner to the relief sought.
2. Is the encroachment a lasting improvement and if so, what effort and cost is involved in removing it? What is its effect upon the properties in question? The permanence of the improvement and the cost and difficulty to move it are factors that influence a court to give the relief sought by the encroaching owner.
3. How does the size of the encroachment affect the present and future value and use of the properties?
The following cases were decided upon consideration of these factors. In each case Smith is the encroacher and Brown is the encroachee.
Smith and Brown owned adjoining large lots. Smith moved a mobile home onto his lot, where it encroached upon Brown’s lot. Brown intended to build a house on his lot near where the encroachment occurred. Smith applied to the court for an order vesting title or giving an easement over the area encroached upon.
The judge decided that Smith had been negligent in failing to know the property lines. The mobile home could easily be moved and the area Smith wanted title to would interfere with Brown’s plans to build his home. The balance of convenience favoured Brown and an order was given that the mobile home be removed.1
When Brown added a room to his house it was discovered that Smith’s retaining wall encroached onto Brown’s property. The cost of replacing the wall was approximately $30,000. Smith applied for a vesting order or an easement on the encroached-upon land.
The judge was satisfied that an honest mistake had been made in locating the boundary line, and that the cost of removing the wall and replacing it was unjustified because its existence did not unduly affect the use or value of Brown’s land. The judge made an order for an easement in favour of Smith over the encroached-upon area, with compensation to be settled and paid to Brown.2
In the next case, both Smith and Brown were mistaken about the location of the property line and Smith’s sidewalk was built over Brown’s property. Smith needed the sidewalk to access his home and it would be impractical and difficult to move. The balance of convenience favoured Smith to whom an easement was given, upon payment of $500 to Brown as compensation. The easement would remain until it was no longer needed for such access.3
In the final case, where an easement to Smith was 4.2 per cent of the total area of Brown’s property, the compensation awarded to Brown was 4.2 per cent of the estimated value of Brown’s property.4
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