Q: Where is my property boundary?
A: A boundary is an invisible line that marks the end of one property and the beginning of the next. Only a survey plan prepared by a licensed land surveyor can show you exactly where your property boundaries are located. The surveyor ascertains the property boundaries using evidence of prior surveys, older authoritative plans and the legal descriptions of pertinent parcels of land, in conjunction with on-site measuring to formulate an opinion of the location of the boundaries. (Note: physical features that exist in proximity to a boundary, such as fences, hedges, tree rows or other man-made objects should not be assumed to mark the boundary line). To understand your survey plan and learn how to apply it to your property, please see How to Read a Survey Plan. You can also arrange to have a survey crew come to your house to stake out your property line.
Q: If I have title insurance, why do I need a survey plan?
A: Title insurance is not "boundary insurance". Title insurance provides protection against certain deficiencies (listed in the policy) in the title to a parcel of land. In Ontario it is commonly used to close real estate transactions quickly. As a regulated financial product, title insurance promises to compensate an insured party for losses arising from a problem discovered after purchasing the property; however, title insurance does not reveal potential problems before you buy the land. Title insurance is also subject to exclusions from coverage, including issues or problems with fences, boundary walls and other items.
Title insurance can be compared to a warranty on a used car – good to have, but a prudent car buyer will also be sure to have a mechanic examine the vehicle and point out any hidden problems that could have serious and expensive consequences.
A professionally prepared survey plan protects your interests in the same way as the mechanic’s assessment, revealing potential property issues before you close. It provides solid, reliable information about the property in question: Will the land be suitable for your intended use? Are there any pitfalls or potential problems associated with the property or the boundaries? In turn, someday when you are ready to sell the property your primary concern will be if you have good and marketable title.
We recommend that homebuyers review the property survey plan with their lawyer and buyer's agent before closing the deal. If you suspect there are any problems, consider consulting a licensed land surveyor.
Q: Should I review the property survey plan before buying a house?
A: It is always wise to examine a survey plan when buying a house as part of your research and due diligence process. A survey plan is an accurate graphic representation of the size and extent of the property. It will provide information regarding the location of structures on the property, fences, encroachments and easements (if any). It will also reveal any title or boundary issues that have the potential to escalate into problems. A new survey plan is the most advisable option; however, an existing plan may also deliver the essential information you need for your real estate transaction. Be sure to review the survey plan with your lawyer and realtor before making a final decision to purchase the property. Please remember that an older survey plan is a snapshot of the property at that time and may not be an accurate reflection of what exists on the property today. If you are unsure, consider consulting a surveyor or commissioning a new survey.
Q: Will the government protect my property boundaries?
We live in a country with a powerful legislative and common-law tradition of protecting an individual’s right to own property within secure boundaries. However, protecting your property boundaries is your responsibility. The government will not actively help with a problem like a neighbour’s fence being built on your side of the property line or any other issue relating to your particular property borders, including locating and defining the limits of your land.
Local governments do provide services to aid in boundary protection, including zoning by-laws and fence viewers. Zoning by-laws cover issues such as how close to a property line a house or other structure may be built. Fence viewers have prescribed procedures for assessing the costs and aesthetics of new fences when neighbours are in dispute. Beyond this owners must resolve their differences privately. Also note that the police will not get involved unless your property or belongings are damaged or destroyed in a criminal act.
Q: Does a survey plan expire after a period of time?
A: A survey plan is a snapshot of a property that is current as of the date the fieldwork was done and the title information researched by the surveyor. To be considered up-to-date, a survey plan must comply with current professional standards and legislation. It must also reflect any changes that may have occurred on the land and illustrate current registry office title information.
Nevertheless a survey plan does not expire. There are situations where the fences and building locations shown on older plans have not changed, but it is still prudent to confirm the information. Surveyors are constantly reviewing older survey plans as these plans provide indispensable evidence for the location of boundaries. If you have an existing survey plan and need help understanding it we recommend contacting the surveyor that originally created it or you can always speak to an Ontario Land Surveyor at PYB.
Q: What is an encroachment?
A: An encroachment refers to a physical entity that belongs to one landowner but lies wholly or partially on a neighbouring property. Encroachments may be sheds, driveways, curbs, roof overhangs, eaves, retaining walls or fences. A survey plan enables a property owner to identify encroachments and seek professional advice to remedy the situation.
Q: What can I do about my neighbour's garden on my property?
A: In today’s crowded urban landscape, people will often landscape with little regard for the location of their property boundaries. Regardless of their innocent intent, it is important for you to politely inform your neighbours of these encroachments and request that they adhere to the boundaries. It's up to you to protect your boundaries.
Before communicating with your neighbours, you should first confirm your boundary locations by commissioning a new survey or obtaining an existing survey plan. Having a new survey plan which shows your property's physical features (and those of your neighbour's) relative to the boundary you share can help to avoid confusion or arguments over the of location of the property lines.
If your neighbour disagrees with the information on your survey plan and refuses to remedy the encroachment, you should seek legal advice. A simple letter from your lawyer can often work wonders. It’s best to deal with these issues quickly in order to avoid bigger problems later, such as when you want to sell your home. Learn more about handling disputes.
Q: How can I stop my neighbour from trespassing on my land?
A: Many trespassing or property encroachment situations are simply a case of a neighbour being unaware or unconcerned about the location of property boundaries. Before speaking to your neighbour about the situation, ensure that you know exactly where your boundaries are located. Do not assume that a fence line, swale or ditch, hedgerow or tree marks the boundary between your properties. Only a survey plan, or a surveyor's field stakeout, is authoritative evidence of the location of the boundary.
If the trespassing neighbour refuses to accept your property survey plan or claims that the plan misinterprets the true boundary, then it may be time to consult a lawyer. Be aware that your local municipality will not get involved in boundary disputes, as they consider such disputes to be a civil matter. However, it is important to act decisively to defend your property rights or else the trespassing neighbour may eventually acquire a real or perceived possessory interest over part of your land.
Q: What can I do about water draining onto my land?
A: Storm water runoff from adjacent properties is a common occurrence that can result in flooding of yards, sheds and basements. If your property experienced no excessive water issues previously, then it is possible that a neighbour has affected local drainage by adding fill dirt, blocked or filled in a drainage swale or diverted roof drainage downspouts so that excess storm water now spills onto your property. Water does not respect land boundaries—but the law does.
Court rulings hold that a property owner has the right to protect their property from uphill surface runoff. In a newer subdivision, you may need to investigate if your neighbour’s grading conforms to the grading plans approved as part of the subdivision registration. Neighbours who intend to change the grading on their property must submit a grading plan to the local municipality for approval. The grading plan must include a drainage plan that shows how they will divert their storm water to a legal discharge location. The drainage plans should not affect or require access to your property (without an easement) so it is important to be aware of your land boundaries.
The City of Toronto will investigate an infraction under the Municipal Code if discharge from a downspout or swimming pool is draining onto your land. The City’s health unit will be concerned about mosquitoes breeding in standing water, rotting retaining walls and tree health that can be affected by excess water over root structures. Many issues are considered a civil matter.
If communicating with your neighbour about the drainage problem produces no results, you may need to consult a lawyer. Engaging a surveyor can help by determining the grades on both properties, and confirming the ground slope and areas of ponding in relation to the property boundaries and on whose property features lie. A Topographic Plan may be needed to assist your lawyer, engineer or municipality to analyze the grades and elevations and solve the drainage problem.
Q: My neighbour says my fence is on their land and that I must move it. The fence was already on the property when I bought it 10 years ago. Do I have to move the fence?
A: You need to investigate the issue and get the facts first. It is perfectly reasonable to ask your neighbour how they arrived at this conclusion and request to see their survey plan. They may be basing their contention on some un-authoritative (non-survey) source and lack proof that the fence encroaches onto their property. But don’t ignore your neighbour; their claim may be valid and the problem won’t go away. You don’t want it to grow into a dispute that will cause emotional and financial distress.
The law does not compel you to move the fence on demand, and your neighbour cannot simply rip down the fence and move it. If the fence has been there for a long time, it may represent evidence of a possessory claim, sometimes called “squatter's rights” (i.e., acquiring title to land when the true owner has neglected to assert their own rights for a specified period of time).
Start by getting a survey to assess your neighbour’s claim. Commission a new survey or buy an existing survey plan from PYB (if you don’t have one) or come to an agreement with the neighbour to have a surveyor mark the boundary on the ground so you can both see the actual location of the boundary. If the dispute progresses, you may need legal advice. Ultimately only a court of law can make the final determination.
Existing survey plans are a valuable resource to homeowners. Please remember, though, that an older survey plan is a snapshot of the property at that time and may not be an accurate reflection of what exists on the property today. If you are unsure, consider consulting a surveyor or commissioning a new survey.
Q: We have an old willow tree with branches that hang over the backyard of our next-door neighbour’s property. They say the tree’s branches are blocking the sunlight for their garden and they want to cut the branches growing over their property. I fear they will harm the tree by cutting the branches. Can I stop them?
A: Generally, people can prune overgrowth in their yard. The law recognizes the rights of landowners to enjoy their property. However, there is a City of Toronto by-law formally known as City of Toronto Municipal Code, Chapter 813, Article III, 'Private Tree Protection', designed to protect trees. Your neighbour may need to apply for a permit to prune your tree if its trunk measures more than 30 centimetres (12 inches) in diameter at 1.4 metres above ground level. Pruning is allowed as long as it does not threaten the health of the tree. If you think it might, the neighbour may need to get an arborist report and pay an application fee. Otherwise, they risk paying a fine up to $100,000! Utility agencies (such as Toronto Hydro) will also prune branches to maintain the safety of their infrastructure.
Q: My neighbor wants to cut down a tree that provides privacy and shade for my backyard. It’s growing on the property line, so who owns it?
A: The ownership of a tree that is located on or near the property boundary can be complex: trees with a portion of the trunk straddling the boundary line are considered co-owned, belonging to both property owners. If one co-owner wants to remove the tree, the property rights of the other co-owner must be respected. A significant ruling by the Ontario Superior Court of Justice in 2013 clarified the issue of tree ownership (or possibly permanently confused it), deciding that a tree is jointly owned if the base of the tree (the root collar) extends across the property line. In cases like this, you will need a land surveyor to precisely locate and stake your property boundary to determine ownership of the tree.
Be aware that a City of Toronto bylaw regulates removal or injury of a tree measuring 30 centimetres or more in diameter as measured 1.4 metres above ground level. There are also stringent regulations that apply to trees along waterways or ravines that may also involve the conservation authority. In these situations, consider having a surveyor locate the trees and prepare a Topographic Plan.
Q: I’m building a house on a parcel of land that has many trees. What do I need to know?
Building projects generally require a site plan that includes information from a Topographic Plan that typically shows the locations and measured diameters of deciduous and coniferous trees growing on the property. Some projects require the trees to be tagged by an arborist or the "drip line" of a group of trees to be highlighted. Be aware that in some jurisdictions removing trees will likely require preparing a “tree plan” for approval. You will also need to place protective hoarding around trees during construction. Site development may require the creation of a buffer zone in relation to the drip line. Certain types of trees, especially butternut and heritage trees, are given special protection. Speak to an Ontario Land Surveyor about the specific surveying requirements for your situation. It may be that each tree on the property may need to be surveyed and possibly trees that are within 6 metres of the property as well.
If you wish to build a fence between trees growing along your property boundary, we recommend you hire a surveyor to stake the boundary location first. This is preferable to simply moving the new fence line inside your property, which effectively surrenders the use of your own land and risks losing the ownership of the portion of land over time.
More questions about trees and your property boundaries? Contact us.
Q: How can I protect my rights regarding a shared driveway and other easements?
A: It is common in older urban areas to have a shared driveway between houses to access garages located in the backyard. In some instances "mutual" driveways have been used this way but have never been registered as an explicit right of way. If your rights regarding a shared driveway are not expressly stated in your property deed (or that of your neighbour), you may need to take action to ensure that you have a legal right of way into your back garage or parking area.
Right of ways are a type of easement that provide access across part of the neighbour’s land (or yours) for a specific purpose, and are related to both parcels of land. Your property survey plan will disclose if your land is subject to a registered easement and the particulars should be described both in your deed and the original easement document by which it was created.
Check your title documents for right of way descriptions and compare them with the locations shown on your survey plan. If your property has a right of way but the title record appears vague or inexact, you may be able to provide evidentiary documents to the Land Registry Office to have the record amended. If this approach fails to produce desired results, seek legal advice regarding your rights and the interests pertaining to your land.
Recent court cases have shown that the original intent of the easement - the specific use it was designed for - is paramount in determining the outcome of a boundary dispute regarding that easement.
Q: I had to get a survey as part of a project I'm working on, but because the survey measurements reveal a zoning discrepancy, I now have to get a variance from a “committee of adjustment.” What is the purpose of this committee?
A: All municipalities have parameters that deal with the use of the land, the kind of buildings that can be constructed and where those buildings may be situated on the property. These rules exist to ensure that one building does not adversely or negatively affect any adjoining building. They do not write specifications for every individual property but instead write general guidelines that apply to different neighbourhoods and areas.
You can apply for a minor variance from the zoning by-law by demonstrating that your intended construction project accords with the general nature of the neighbourhood and the overall planning objectives. There will be a formal hearing and your neighbours have the opportunity to provide comment or object. City staff will provide their comments then the Committee will decide whether the variance is allowed. You may also be required to submit a survey plan to demonstrate the existing and proposed building locations. The purpose of the committee is to allow citizens a means to get around the strict application of the zoning by-law. Note that this exemption applies only to your specific property and not to the entire community at large.
Q: How far from my property boundaries am I required to site a backyard shed or a pool?
A: Requirements for siting structures or pools vary from municipality to municipality, each having zoning by-laws that deal with structures (pools, sheds, additions, etc.). Check with your municipality’s building department to know what is permitted. When you sell your property, you’ll want to avoid problems due to structures being illegally built too close to your property boundary.
Q: Can I build on my land?
A: Canada’s municipalities have strict limitations on what you can build on your property. Zoning by-laws are intended to regulate land usage for the benefit of the entire community. Every piece of land in the Greater Toronto Area is subject to zoning regulations that reflect how the property fits into the municipality's official plan. These regulations specify, among other things, the distance that buildings are located from the property boundaries (setbacks), building height, maximum floor space, lot coverage, required parking and an array of other requirements enforceable by law.
Applying for a building permit requires a site plan or grading plan. Zoning deficiencies shown on the plans can be appealed with an application to the Committee of Adjustment for permission to get a minor variance. Additional zoning requirements encompass tree and ravine protection, floodplain and conservation zoning, airport height restrictions, greenbelt and hazard land restrictions, and more. Knowing the exact location of your property boundaries is important in order to comply with zoning and other municipal regulations.
Q: Can I sell a portion of my land?
A: Just as municipal zoning by-laws and land-use plans regulate what can be built and where, municipalities also regulate how and when portions of your land can be sold. Most Ontario municipalities today require land severance approval with regard to any change to existing property boundaries, and a “consent to sever” is required if you intend to sell, mortgage, charge or enter into any agreement regarding the severed property for at least 21 years. A consent includes registration of proposed rights of way, easements and changes to existing property boundaries, but consent is not required if the property is already divided by a public road, railway or navigable waterway. Obtaining consent requires applying to your local municipality’s Land Division Committee, Committee of Adjustment, or equivalent.
Urban landowners sometimes consider selling an excess portion of land to a neighbour or developer. However, new building lots must comply with the minimum restrictions on lot dimensions. A new reference plan showing the new configuration of the land will be required. Learn more.
Q: I know my property has a boundary issue, but I plan to sell the house next year. Why should I solve this boundary issue when it will soon no longer be my problem?
A: Don’t assume the boundary issue won’t be your problem. If a potential buyer reviews a survey as part of their due diligence, this boundary issue could delay or even terminate the closing, and possibly lead to a substantially reduced sale price. In a worst case situation, vendors are sometimes required to have a Reference Plan deposited and a new deed description prepared in order for the transaction to close. If you have a title insurance policy, that insurer may have a solution if you can make a claim.
As laws pertaining to the selling of real estate are moving in the direction of total disclosure, it is prudent to disclose your knowledge of problems to potential purchasers. Certain title issues, such as longstanding adverse possession and prescriptive right of ways, are time-sensitive and may become a detriment if left undisclosed. Any seller who is providing a "Sellers Property Information Sheet" has to disclose what they know. Also, some boundary problems can potentially be resolved before the house is put on the market. Take action now—and seek legal advice to avoid an expensive mistake.
Q: Can my neighbour and I simply agree on the location of the boundary?
A: Property boundaries that are not well known and well demarcated can lead to confusion about boundary locations—especially when an existing survey plan is unavailable. In situations like this, it is recommended that you and your neighbour engage a licensed land surveyor. Surveyors employ rigorous procedures for retracing the location of boundaries between properties based on the physical evidence and historical records. Establishing the legal boundary is important to avoid potentially expensive disputes in the future.
Q: I have an old survey that I want to update, but I can't locate the original surveyor. Can it be updated by another surveyor?
A: Unfortunately, the original survey can only be updated by the land surveying firm that created it and owns the copyright to the plan. You will be unable to have a plan updated if that firm is no longer active (even if its records are owned by another company). If the original surveyor is unavailable, the simplest and most reliable solution is to commission a new survey plan.