Buying a Property with a Boundary dispute Already

Hello Pat;

Great question with an answer that is quite involved. 

First of all, this is a serious title and land issue and we strongly advise you to speak your lawyer before you make any arrangements with your future neighbour. Your neighbour cannot unilaterally change the boundary of their property, particularly as it has an effect on the neighbouring property. Assuming you purchase the property here are several options available to you both to deal with this legally. They are as follows:

1. Apply for a transfer or exchange of land. You can agree to give/sell to them the portion of your land they are encroaching upon. To make this change legal and binding you have to have a surveyor draw up a reference plan showing the change, and apply to the Committee of Adjustments for a consent. One option in this regard is to facilitate a land exchange where in return for the piece of land they are encroaching on, they give you a commensurate piece of their land.

2. Come to an agreement to create an encroachment agreement. This is a legal document, prepared with legal assistance, in which they acknowledge the encroachment, and you permit them to encroach with the provision that you (or future owners of your property) can demand the removal of the structure at a future date.

3. Apply for an easement. If you don’t want to give up your land but want something more formal that an encroachment agreement, you can apply to the Committee of Adjustments to allow the creation of an easement over the encroached portion of your land in your neighbour’s favour. This would allow you to retain ownership of the land in question, but give them legal rights of use.

4. If your land was not in Land Titles at the of construction time (your lawyer can advise you), your neighbour may have an opportunity to claim adverse possession over that portion of your land. If they can prove continuous, uninterrupted use of that portion of land for 10 years prior to your property’s conversion to the Land Titles system, then they may have the right to make a claim. However, such claims are handled through the courts and as such are costly and time consuming, with the heavy burden of evidence falling on the claimant. 

All of this assumes your property is in Ontario. If you are outside of this jurisdiction, we strongly advise consulting a local lawyer who specializes in land law.

I hope this helps.