Encroachments in real estate – RMS Estates Law

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Encroachments in real estate

Raluca M. Soica
September 26, 2023

In this article, we intend to provide readers with an understanding of the dynamics of encroachments on real estate property and how they may affect your property. Furthermore, this article will provide information regarding different measures that you can take to resolve this problem.

In real estate, encroachment occurs when another property owner (usually a neighbour) extends their property onto/over yours. Buildings, fences, hedges, or any other type of structure that may have an adverse effect on the use or viewing of your property are examples of encroachments. In most cases, encroachment occurs due to no prior permission being sought. Additionally, encroachment can hinder the sale, financing or enjoyment of one’s property.

In most cases, encroachments occur when property lines are not clearly defined. To prevent the emergence of a prescriptive easement, encroachments should be addressed immediately. When a right has been enjoyed without interference for 20 years or more, it is considered a prescriptive easement.

You may wish to consider the following resolutions and alternatives if your neighbour has not reached the 20-year mark of use and encroachment has occurred:

Contact your neighbour and inform them that you believe they have encroached on your property. It is essential to approach your neighbour cautiously and assume that they may have been mistaken in order to handle the matter peacefully. Next, ask your neighbour whether the encroachment will be temporary or permanent. Make sure that you have everything in writing if you can resolve the matter to have proof if the situation escalates.
Verify the property boundaries: It is essential to review the zoning bylaws and other codes that may be applicable—understand which laws have changed and which ones have been grandfathered in. The grandfathered laws refer to property rights not subject to the current legislative changes imposed by zoning bylaws. * For this step, it is recommended that you consult with a lawyer who specializes in boundary-related issues related to real estate. A lawyer will be able to provide you with the legal documentation necessary to verify that your neighbour is indeed illegally encroaching on your property.
If you have not lived in the home for ten years or more, you should inquire with the previous owner to determine whether your neighbour can file a claim for adverse possession against you. A person who has used your property or an aspect of your property for at least ten years without objecting may claim adverse possession, also known as squatter rights. A neighbour can claim a squatter right even if you or the previous owner paid for using that particular area or area of the property.
You may consider selling the encroached portion of land to your neighbour if the encroachment does not bother you and you want to maintain a friendly relationship with your neighbour. With this option, you could leverage negotiating power and discuss with your neighbour whether you also desired access to the portioned land (for example, if a building was constructed).

Real estate lawyers can assist with property boundary issues, encroachment issues, and other concerns. If you require further information regarding encroachments, please do not hesitate to contact RMS Estates.

PLEASE NOTE THAT THE CONTENT OF THIS BLOG IS MERELY FOR INFORMATION PURPOSES AND DOES NOT CONSTITUTE LEGAL ADVICE.

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raluca@rms-law.ca
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