Understanding Hidden Land Obligations: What to know before you alter your land

To many homeowners, a berm appears to be nothing more than the natural shape of the land. What often goes unnoticed is that this “mountain of dirt” may exist because of legal obligations, supported by specific language in a property’s records that prevents it from being altered and places ongoing maintenance responsibility on the owner.

Even decades-old agreements can still control what owners can and cannot do with their land. These agreements “run with the land,” meaning the obligations pass from one owner to the next, regardless of how much time has passed since the subdivision was first built.

One homeowner in Ontario learned this lesson the hard way when they removed more than 50 dump-truck loads of dirt from their backyard to level the land and create more usable space for their family. A wall at the back of the property was also removed due to safety concerns, as it was reportedly shaking and unstable. By all accounts, these changes appeared to be reasonable home improvements. However, after a neighbour contacted the city to complain about the work, the homeowner was informed that the berm must be fully restored, an undertaking they fear could financially ruin their family.

The City’s Position

The city of Windsor has been firm in its position to have the berm fully restored. Their reasoning centres on noise reduction, rail safety, and compliance with bylaws and rail regulations. The legal binding surrounding the berm was written into a registered notice agreement on the property’s title. Once such agreements are in place, municipalities cannot ignore them when they are breached.

Notice Agreements

A notice, or notice agreement, is a separate legal agreement registered on title that affects how a property may be used or altered. While similar to an easement in that it places legal restrictions on the land, a notice does not grant another party the right to use or access the property. Instead, it outlines conditions or obligations that apply to the land itself. Notices also do not appear in the legal description of a property in the same way an easement does, which can make them easier to overlook.

The notice in this case did not come from a single by-law but from a three-layered agreement that built one over the other over time. The first was the railway agreement between CN and the original developer that required the berm for noise mitigation and safety. This first layer made the subdivision possible in this specific location. The second notice was a registered subdivision notice that carried the required berm forward and placed an ongoing obligation on homeowners to maintain it. The third was a subsequent agreement addressing other development details, which left the original berm requirement intact, confirming it to be legally bound to the land.

What went wrong?

In many situations like this, homeowners are not entirely to blame. A lack of information at the time of purchase is usually the root cause. In hot real estate markets, buyers sometimes forgo performing land and boundary due diligence and are sometimes even advised against it to keep transactions moving smoothly.

In this case, the homeowner noted that neighbouring properties had made similar changes to their yard, leading them to believe the work would be allowed. It is not clear if the homeowner was aware of the notice agreements affecting their property, but it is reasonable to assume that if they were aware of the implications, the work would have been approached differently.

The PYB Mission

At Protect Your Boundaries, we are committed to helping homeowners understand their land. We encourage all homeowners to be land and boundary aware before you buy or make any changes to your property, and to confirm zoning and bylaw requirements with your local municipality. Never rely on changes your neighbours have made, and your assumptions should not replace good research.

If you don’t have a copy of your survey plan, you can check if we have a copy available on our website. We also offer property reports that include registered legal instruments and land records, translated into clear, plain-English summaries to help homeowners understand what applies to their property.

Final Takeaways

Situations like this are rarely the result of bad intentions. They're about information that never surfaced until it was too late. The agreements that governed this berm were registered on title long before the current owner purchased the home. If a land review had been done before alterations took place, it would have been revealed that the berm was not landscaping but rather a piece of infrastructure that was tied to the approval of the subdivision itself.

This case is a reminder that some things that seem commonplace exist for a reason. They come from past decisions, conditions, and compromises that serve a purpose. Investigating your land is not an inconvenience you should side-step. Being knowledgeable before you make changes is necessary for protecting your peace of mind and your financial well-being.

This article was written based on a CBC News article by Pratyush Dayal published on January 21, 2026. Click here to read the original article.