Encroachments in Ontario Real Estate: Fences, Structures, and Survey Disputes

Imagine finding out, days before closing, that the seller's garage sits four feet onto the neighbour's lot — or that the neighbour's fence has been inside your intended property line for twenty years. Encroachments are one of the most common title complications in Ontario real estate transactions, and they can range from a minor inconvenience to a deal-stopper, depending on what is encroaching, by how much, and whether an agreement is already in place.

This article explains what encroachments are, how they are detected, and the main ways buyers and sellers can address them.

What Is an Encroachment?

An encroachment occurs when a structure or improvement — a building, deck, fence, retaining wall, driveway, or eave — physically extends beyond the property boundary onto an adjoining lot or onto a public road or utility allowance. Encroachments are a physical fact that must be reconciled against the legal description of land registered on title.

Encroachments Versus Easements

An encroachment is an unauthorized physical intrusion onto land belonging to another party. An easement is a legally granted right to use part of another's land for a specific purpose. The two are related but different: an encroachment that has been formalized — in writing, registered on title, and acknowledged by the neighbouring landowner — becomes an easement or a licence. An encroachment that has not been formalized is simply an intrusion that could be challenged.

How Encroachments Are Discovered

The Survey

An Ontario real property survey (more precisely, a survey plan prepared by a licensed Ontario Land Surveyor) shows the physical location of buildings, fences, and structures relative to the registered lot boundaries. Most buyers request a survey or a survey update as part of their due diligence.

Common survey findings that signal an encroachment:

• "Fence located X.XX m north of boundary" — the fence is not on the legal line
• "Deck overhangs boundary by X.XX m" — part of the deck is on the neighbour's land
• "Garage eave/soffit projects over boundary"
• "Driveway encroaches onto road allowance"

Why Older Surveys Can Miss It

A survey prepared when the home was built may not reflect subsequent additions, a fence re-installed in the wrong location, or a new addition. Buyers should always request a current instrument survey (sometimes called an "as-built" survey) rather than relying on a decades-old plan.

Title Insurance as an Alternative

Many Ontario buyers purchase title insurance in lieu of a new survey. Title insurance can cover certain encroachment risks, but it does not physically measure the land or tell you about an encroachment — it just insures you against financial loss if one arises. A survey gives you information; title insurance provides compensation after the fact. The two are complementary, not substitutes.

Types of Encroachments and Their Severity

Resolving an Encroachment

1. Encroachment Agreement

The most common resolution for minor-to-moderate encroachments is a formal encroachment agreement between the neighbouring property owners. The agreement:

• Acknowledges the encroachment and its dimensions (as confirmed by survey)
• Grants a licence or easement allowing the encroaching structure to remain in place
• Specifies what happens when the structure is eventually replaced or removed (typically no right to rebuild to the same encroachment)
• Is registered on title to both properties so it binds future owners

An encroachment agreement requires both neighbours to agree and both lawyers to register the agreement. It is not a quick fix — negotiations can take time and may require a surveyor to confirm exact dimensions.

2. Lot Line Adjustment (Boundary Change)

Where the encroachment is significant and the neighbouring owner is willing to sell a strip of land, a formal lot line adjustment (also called a part lot adjustment or reference plan) can be completed to move the registered boundary to reflect the physical reality. This involves:

• A licensed Ontario Land Surveyor preparing a Reference Plan
• A transfer of the encroached-upon strip
• Registration of new title instruments for both properties
• Possibly a Committee of Adjustment application if the adjustment affects compliance with zoning

3. Removal

If the encroachment is a minor structure (shed, fence, small deck portion), the simplest and cleanest solution is to remove or relocate the offending structure. This is often the cheapest option even though it requires physical work.

4. Adverse Possession (Historical Context)

Historically, if a party occupied a strip of land openly, continuously, and without the owner's permission for the required limitation period, they could acquire title. However, Ontario moved to the Land Titles system for most urban properties, and adverse possession claims are generally not available for Land Titles properties. Only properties still under the Registry system may be subject to adverse possession claims — and this is increasingly rare.

What Buyers Should Do

1. Always ask for a survey or survey update. Do not rely solely on title insurance for boundary comfort if the property has additions, a detached structure, or a history of renovations.
2. Ask the vendor directly about known encroachments. Ontario sellers must disclose material latent defects, and a known encroachment affecting the use of the property may fall within that disclosure obligation.
3. Investigate before waiving conditions. If the survey reveals an encroachment, consult your lawyer before waiving your condition on title or financing.
4. Confirm any existing encroachment agreement is registered. A verbal arrangement between neighbours is worthless to future owners.

Frequently asked questions