Property Line Encroachment Laws in BC
Land ownership gets tricky when a neighbour stakes a claim on another neighbour’s land, whether intentional or not.
Real estate encroachment usually occurs when a structure, such as a fence is partially placed on a neighbouring property. Another form of property encroachment can happen when trees or shrubs grow into a neighbour’s yard, taking up air or ground space.
Disputes over property lines are common between neighbours over a new fence or an existing structure. 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. Compensation rulings on BC land encroachment have run from thousands of dollars, including payment for legal fees, to $1.
Land boundary disagreements between neighbours can go sideways, and the best way to solve these is with a mutually beneficial arrangement. The courts have seen many forms of inappropriate neighbour behaviour, including abusive language, aggressive signs, property damage, driving through another’s land, throwing debris across property lines and strategic placement of dog feces.
Legally, every homeowner has land rights for their piece of real estate; however, what the courts do to resolve land encroachment may not be what you would expect. British Columbia property encroachment laws have changed over the years, including how the courts settle property line disputes.
Section 36 of British Columbia’s Property Law Act states that through proof of property encroachment by a legal survey certificate, the Supreme Court will either:
- Grant a Property Easement
- Adjust the Property Title; or
- Order removal.
If the Supreme Court determines the removal of an encroached structure or nuisance from a homeowner’s land does not warrant the expense or cause any inconvenience, the person encroaching could be granted a property easement or title for the portion of land being used with fair compensation to the owner. In this case, the neighbour who has encroached on a homeowner’s land is permitted to keep the building, shed or fence intact at a proportionate property cost paid to the landowner.
When the Supreme Court decides the encroachment was known, intentional or interferes with the land use of the current owner, they may order the removal of the disputed structure at a cost to the encroaching neighbour.
To resolve a property line encroachment, an application must be filed with BC’s Supreme Court. BC’s Provincial Courts do not rule on land boundary easements, title or removal but can grant remediation for damages made between neighbours.
When a structure is placed or built on another’s land without removal, it is considered an actionable wrong. When this structure remains, BC Supreme Court considers it to be a “continuing trespass.”
A continuing trespass could be anything that remains on another’s property, such as a fallen tree, flooding or structure placed across boundary lines.
Can a Property Owner Remove an Encroachment?
The courts do not look kindly upon an owner destroying or removing a continuing trespass that causes a loss for the encroaching neighbour. When property damage occurs and it goes to court, the law may not be as quick to act in favour of the landowner.
In one Supreme Court case, an owner attempted to remove a continuing trespass by jackhammering into an encroaching retaining wall. This did not end well for the landowner, who had to pay for the repairs of the retaining wall in the amount of $6,300 plus pay the encroaching neighbour for general, aggravated and punitive damages.
If your boundary lines have been crossed, obtain a Land Survey Certificate for your property and try to resolve the issue as best as possible. When a continuing trespass has not been removed or resolved, and your property requires further protection, take the proper legal precautions and avoid taking matters into your own hands.
British Columbia Property Law Court Cases
Langley v. Yang, 2012
Yang built an extensive patio that encroached onto Langley’s North Vancouver property without obtaining a survey certificate to determine the property line. The Langleys petitioned for a court order to remove the patio, while the Yangs petitioned for ownership or easement of the encroached land.
While the court determined the Yangs turned a blind eye and were negligent in not obtaining a land survey certificate before hiring builders to undertake their expensive landscaping project, they ruled against removal.
Removing the encroached patio would be costly, destroy the esthetics and function of the deck and reduce the enjoyment of the Yang’s property. While the Langley’s home was some distance from the boundary line, and their property enjoyment and functionality was not impacted by the Yang’s encroachment.
The court ordered the Yangs to compensate the Langleys for the appraised value of the encroached land in the amount of $22,000 and pay their legal fees.
Oyelese v. Sorensen, 2013
Sorensen bought a Kelowna property in 2007 with an in-ground swimming pool. Sorensen was unaware that this pool encroached on the neighbour’s land. Oyelese purchased the neighbour’s property in 2009 and discovered the pool crossed over the boundary line. Oyelese turned down Sorensen’s offer to pay for the encroached land and filed a lawsuit.
The court ruled the removal of Sorensen’s pool within 75 days.
Gueldner v. Nichele, 2013
The Gueldners purchased an Abbotsford property in 2002 with full disclosure of an existing barn and shed that both encroached on part of the neighbouring land. In 2008 Nichele purchased the neighbour’s property and was also informed of the encroaching barn and shed.
After much dispute, the Gueldners petitioned to have the property lines moved to accommodate the barn and shed, buy the land and obtain title where the buildings encroached or be granted an easement. Nichele petitioned for shared use of the barn and shed or to remove the encroached structures within six months.
The Gueldners argued it would be costly to remove the barn and shed that was actively used for horses and chickens, while Nichele stated he wished to run a private road where the buildings sat in order to access farm pastures. Nichele also felt his property would be de-valued if the property lines were not straight, which could interfere with any future subdivision.
Due to the Gueldner’s awareness of their property encroachment and the interference this could cause Nichele, BC’s Supreme Court ruled in favour of Nichele that the barn and shed be removed in nine months’ time.
Buyer’s Real Estate Due Diligence
Before purchasing a property in BC, it is advisable to have a survey certificate performed and obtain a current copy of the Land Title. Ask your real estate agent to assist you with both of these important land documents to help determine boundary lines.
A survey certificate will show you exactly where the property lines are in relation to existing buildings and structures. If a neighbour happens to be infringing on a property you wish to buy, this may show up on a survey certificate. If the current property owner has a structure that encroaches onto a neighbour’s property, it will be apparent.
A Land Title Certificate will outline any granted easements or adjusted land portions of title to a neighbouring property.
Have your lawyer and real estate expert review all documents to ensure your prospective property is in good standing. Potential legal battles with your new neighbours could be avoided by being aware of any current land encroachments.
How Close Can You Go?
British Columbia’s building codes state that a building or dwelling should be built no less than 5 feet from the property line. Each BC municipality and property zoning has its own setback requirements for small structures such as a shed. Before constructing a stand-alone building, check your property zoning bylaws and local municipality for setback rules and building guidelines.
Consider Your Neighbour
Before you build, install, attach, pour, plant or remove, consider your neighbour. If your plans (or your neighbours) appear to be on, or close to your property line, hire a licenced Land Surveyor to establish your property lines or check with BC's Land Title and Survey office to see if a survey certificate or plan has been electronically filed for your property or your neighbour’s property.
If you discover a neighbour is encroaching on your land, try to reach a peaceful neighbourly agreement. Perhaps they can rent the proportionate land without removing an existing structure, move it if it’s not permanent or agree to remove a nuisance or continuing trespass.
Ask a BC Real Estate Professional
An Association of British Columbia Land Surveyors member can locate your property lines and perform a legal Survey Plan for you. The cost for a Land Survey Plan in BC runs from approximately $350 to $550, depending on the lot size and complexity.
Some survey companies will perform property boundary staking where you and your neighbours can visually see exactly where your property lines lie.
The Government of Canada offers an online Survey Plan Search Tool that may help you find any previously performed surveys on your property.
When buying BC real estate, speak with an experienced real estate lawyer and a professional real estate expert for advice on potential or existing property encroachments.
LoyalHomes.ca has a team of skilled and knowledgeable BC real estate experts to help with any real estate questions or concerns you may have during your search.
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