Messy situation - neighbour's driveway encroaching - house for sale

Hi pinny2000;

Yes, messy indeed, but not uncommon. Prior to reading our response, please be aware that we are surveyors not lawyers and, as such, our comments should not be taken as legal advice, but rather information to be discussed with your lawyer who will ultimately guide you to the best resolution.

That said...

First and foremost you need legal documentary evidence that the neighbour's driveway does encroach on your property. That is a land survey - either a new one or the old one if you find it that shows the driveway encroaching. Try doing a search on our site...we may have a copy of the old one (www.protectyourboundaries.ca). A new one that is a representation of the land today would be by far most preferable.

Second, if the next door property has not yet sold, it may be wise for you to insist that the seller / listing agent disclose the encroachment, and do it in writing (keep a copy). If it's an estate sale they may not be aware of it. That way anyone who buys the property will be fully aware of the situation and will know that they likely will not be able to enjoy the full extent of the property as it appears today.

As part of the building permit process a new owner would have to get a new survey of their property done which would, according to you, show that their driveway encroached onto your property. There are a number of remedies that they could then pursue, however none of them should include them being granted a permit to build on your land. 

If the driveway/encroachment is incidental to the size or placement of their structure they may get the building permit, but still, they would not have automatic rights to the land their driveway is on. You could, with new survey in hand, demand that they remove the driveway from your land, and let our legal system take it from there. They may claim adverse possession over the land, in which case it will be incumbent upon them to prove uninterrupted use of that land for a ten year period prior to when your property was converted to the land titles system. I would be your word about the contract you had with the former owners versus the new owner's ability to prove that all the conditions required for a successful claim of adverse possession claim can be met. 

It's a complex situation with many facets. We are surveyors and you need both a surveyor and lawyer to guide you through this.

My recommendation to you as a starting point is as follows:

- Get a new survey done that shows the encroachment. This is something that we do, or you can call one of the other great surveyors in the city.

- Contact a lawyer that specializes in boundary-related issues and litigation (not a real estate lawyer that just does closings). 

Your lawyer will know exactly how to guide you through this process.

I hope this helps.