Real Estate

The Importance of a Legal Survey in a Property Dispute

Written on behalf of Cherkowski Marsden LLP

Neighbours often disagree about property lines, particularly when it comes to fences or shared driveways. In a recent dispute, two neighbours disagreed over the location of a group of trees, which one neighbour logged.

The neighbours owned adjoining properties, both of which were large lots with several trees. The respondent decided he wanted to log part of his property, and hired RW to complete a survey of the land and the property lines before he proceeded. RW was not a licenced land surveyor and admitted that he was not legally able to determine property lines. As a personal favour to the respondent, he completed a survey and provided a report showing the lot lines to establish where the respondent could log the property.

The report showed that some of the fencings between the properties were not on the property line, and so the applicant agreed to move them in accordance with the report. The respondent then proceeded to clearcut trees on what he thought was his property and left a buffer around the lot line to ensure he did not encroach on the applicant’s property.

A few years later, the property line was at issue again when an energy company had to work on a pipeline near both properties. The energy company hired a licenced surveyor and the resulting report showed that RW’s original report had been incorrect. As a result, the applicant sought to recover damages for trees the respondent logged on her property, as well as the costs of moving the fencing again. The applicant initially claimed that the respondent had logged 25 trees on her land, and later amended it to 41. She sought a total of $5,000 in damages before the British Columbia Civil Resolution Tribunal.

Duelling Surveys

The surveys showed different property lines, but the issue became whether the survey commissioned by the energy company could be relied upon as a legal survey. There was a notation on the energy company’s copy of the document that “the map is for presentation services only and the map may represent generalized data which may not be appropriate for a decision requiring legal accuracy”. However, the applicant obtained a letter from the licenced surveyor who created it saying that the map was a legal survey.

The tribunal reviewed the energy company’s survey and found that a legal survey must be completed under the Land Act, Land Titles Act or Strata Property Act. There was no indication this survey had been completed for these purposes, and so the tribunal found that the survey was not legal in nature. As a result, the tribunal could not make a determination as to the legal owner of the trees in question, and the applicant’s matter was dismissed. Anyone entering into a legal dispute centred around a property boundary is advised to ensure they have a legally valid survey of the property in hand, or they may find they are unable to make their case.

Obtaining a Legal Survey of Land

When entering into a dispute with a neighbour over the property line, the first step should be to obtain a legal survey of the properties in question. Before hiring a surveyor, it is worthwhile to check with the BC Land Title & Survey Office, which has legal surveys of thousands of properties across the province. If a copy of your property survey is stored in their records, an electronic copy can be requested by a legal professional, land surveyor or registry agent. If not, or if the survey on record is out of date, you will need to hire a licensed surveyor to complete a survey in accordance with provincial legislation. Depending on the level of work involved in creating the survey, this may not be an insignificant expense. Whether it’s worth it will depend on the nature of your dispute and what is at stake.

The lawyers at Cherkowski Marsden LLP have over 50 years of combined experience assisting clients with real estate purchases and sales. They will carefully review any Contract of Purchase and Sale before signing in order to ensure that your rights and concerns are properly addressed. Further, we will complete a thorough review of all documentation and title searches associated with a property before purchase to ensure you are aware of any potential issues before closing. To arrange a consultation with an experienced lawyer, please contact their office online or by phone at 250-308-0338.