Nothing can disrupt the harmonious relationship between neighbours like a dispute over the property or fence line. When a fence encroaches onto another property, it may exist that way for years, only to be discovered when one neighbour moves, creating headaches for the new owner. In some cases, disputes arise as soon as a new encroachment occurs, which can lead not only to bad feelings and tense relations but also to costly litigation if issues cannot be resolved amicably.
In a recent decision of the BC Civil Resolution Tribunal, two neighbours sought to resolve issues relating to a fence that one neighbour claimed encroached on his property, and the costs involved with resolving the matter.
When a Fence Crosses the Line
In the case at hand, the two property owners shared a backyard border. The applicant had erected a fence in 2017 and before doing so, had hired the services of a surveyor in order to definitively determine his property line. He said that he purposefully built the fence inset from his own property line so that it was fully within his own property. Approximately six months later in the spring of 2018, the applicant noticed that the respondent had also constructed a fence and that he had attached his fence to the applicant’s fence. The respondent later admitted that he had not looked into the property boundaries when constructing his fence, but rather made the assumption that the applicant’s fence was on the property line.
The applicant wrote a note to the respondent explaining that his own fence was well within his property line, and as such, significant portions of the respondent’s fence were encroaching on the applicant’s property. He asked the respondent to remove any encroaching fence and repair any damage to the applicant’s fence that resulted from the removal. The respondent then removed some of the encroaching fence boards, but not all.
In order to bolster his claims of encroachment, the applicant hired surveyors to complete additional survey work in late April of 2018, for which he incurred the expense of just over $700.00. The new survey clearly showed a portion of the respondent’s fence clearly encroached onto the applicant’s property. When the applicant showed this to the respondent, the respondent removed the offending portion of his fence.
The applicant then brought an application before the Tribunal seeking costs relating to the survey work, as well as an injunctive order that the respondent remove any remaining portions of the fence that encroached on the applicant’s property.
With respect to the survey costs, the Tribunal found in the applicant’s favour. The respondent had constructed his fence without first confirming the property boundaries, and then further required the applicant to incur the cost of additional survey work before removing the offending fence as requested. Given that, it could be said that the applicant would not have had to incur the additional survey costs were it not for the respondent’s actions. As a result, the respondent was ordered to reimburse the applicant for the survey costs, as well as pay $125.00 in Tribunal fees.
With respect to the injunctive order, it was not clear whether any of the respondent’s fence remained on the applicant’s property. However, the Tribunal declined to make any order, pointing out that s. 118 of the Civil Resolution Tribunal Act does not allow for injunctive relief addressing the issue of encroachment. For those matters, an applicant would be required to the British Columbia Supreme Court for relief.
Relief Under the Property Law Act
For property owners in British Columbia, encroachment disputes can go one of two ways:
- The encroachment may be allowed to stand, sometimes with compensation going to the owner of the encroached-upon property; or
- The encroachment may be ordered removed.
The factors affecting which way a court will decide include the length of time the encroachment has existed, the knowledge (or lack of) the encroachment at the time it was created, and the costs of removing the encroachment in relation to the loss to the encroached-upon property owner.
Encroachment disputes are governed by s. 36 of the Property Law Act, which reads as follows:
(1)For the purposes of this section, “owner” includes a person with an interest in, or right to possession of land.
(2)If, on the survey of land, it is found that a building on it encroaches on adjoining land, or a fence has been improperly located so as to enclose adjoining land, the Supreme Court may on application
(a)declare that the owner of the land has for the period the court determines and on making the compensation to the owner of the adjoining land that the court determines, an easement on the land encroached on or enclosed,
(b)vest title to the land encroached on or enclosed in the owner of the land encroaching or enclosing, on making the compensation that the court determines, or
(c)order the owner to remove the encroachment or the fence so that it no longer encroaches on or encloses any part of the adjoining land.
Property owners who feel that their land has been encroached upon are encouraged to seek the advice of an experienced real estate lawyer who can assess the situation and advise them of their rights and their chances of success in a potential legal dispute. Litigation can become costly, and an effective lawyer may be able to assist with achieving an amicable resolution before litigation becomes necessary.