Pushing your boundaries

Mourning

Fence 1If you live in an urban subdivision built in the past ten or 15 years, chances are the borders of your property are exactly where they appear to be – right down the fence line and to the edge of the street. There is an extremely low likelihood that part of your deck is on the neighbour’s property, or part of their fence is on yours. This can be drastically different, however, when it comes to older properties or properties in more rural areas.

There is a concept in real estate law called adverse possession. Adverse possession occurs when the person encroaching onto the neighbouring land knows he or she is doing so, and does so without permission. An example would if you built a garage at the edge of your property knowing that it was not your property. After ten years, if the adverse possession continues, you can bring a court application claiming the extra strip of property as your own. In order to be adverse, the use of the property must be open, continual (which includes seasonal use, where relevant), notorious and exclusive to the actual owner. It must also be without permission; if at nine years and 11 months the owner stops you and says that you have permission to be there, then the adverse possession claim is blocked.

A further wrinkle to possible adverse possession claims in Ontario is the land titles system. Ontario is in the process of switching all properties into this system, which prevents adverse possession.

If you are concerned about adverse possession on your property, you can check at the Registry Office as to when your property went into land titles, and then start with a new survey to check on the lot lines.

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