If you are a homeowner, you likely assume that you know where your property begins and ends. But how certain are you? Are you relying on the position of a fence? Where your neighbor stops mowing his lawn? Or are you relying on where the Realtor or the previous owner told you the property line was? If you have not had a survey done of your lot, you cannot be certain of where the legal property line actually lays.
A prudent practice when buying a property is to take a look at the most recent survey of the lot. These can be obtained from the seller or from the Land Title Office. You can also view your property line online with the free GIS Regional District of Central Okanagan mapping system. If you were assuming that your lot was rectangular, but the survey shows some other shape, then you have your cue to investigate what structures or landscaping are potentially outside of the property line. It may be advisable to have a new consolidated site survey prepared by a BC Land Surveyor so that you know exactly where the property line is, or, for example, if there are any ‘no-build’ zones. If the encroaching structure is something minor that can be easily relocated, such as a temporary shed, the matter could be resolved by a simple conversation with your neighbor. However, if the structure is something that is going to be quite costly to move, you may end up in court.
The court has the power to grant an encroaching neighbor an easement, meaning the right to use that part of the property without owning it, or the court can order the encroaching land be transferred to the neighbor for a price, or the court can order that the structure be removed at the encroaching neighbor’s cost.
In a recent Kelowna court case, Oyelese v. Sorensen, 2013 BCSC 940 (CanLII), both neighbors were mistaken as to the property line due to a fence that had been erected in 1998, before either of them owned the properties. A previous owner had installed a pool, a patio and landscaping on what he believed to be his property. When the Sorensens bought the property, the mistake persisted. In 2009, in the course of making certain improvements to their backyard, the Oyeleses discovered that the fence did not run along the property line, and the Sorensen’s pool and patio were in fact on the Oyeleses’ property. The court ordered the Sorensens to remove the pool and patio, and now the Sorensens are left with the option of suing the previous owners who installed the pool in order to recoup their losses.
If either of the parties had examined a survey when they were negotiating the purchase of their property, they could have discovered the problem and negotiated a solution prior to buying the property. If you do not want to incur the cost of a survey, another option is to obtain a homeowners title insurance policy.
Most title insurance policies provide coverage for losses related to encroachments and defects that would have been revealed by an up-to-date survey. They will not, however, cover defects that were created, allowed or agreed to by the insured, or that were known to the insured but not disclosed to the title insurer. It should also be noted that title insurers have the choice of which remedy to pursue; they can take conduct of the litigation, they can pay for the removal of the encroachment or they can pay the loss in land value to the insured.
While encroachment is quite often an honest mistake, it is also often quite costly. If you are attempting to cut costs by not having a survey done, or not ordering a title insurance policy, you may end up paying for it down the road. When buying, at the very least you should make the effort to obtain the most recent survey done on your property and if you are installing a pool, you should get a new survey.The information provided above is for educational purposes only. This information is not intended to replace the advice of a lawyer or address specific situations. Your personal situation should be discussed with a lawyer. If you have any questions or concerns, contact a legal professional.