Encroachment on Your Property in Ontario: Your Legal Options

An encroachment happens when something crosses the boundary onto land that is not the owner's, such as a shed, a driveway, a garage corner or a fence. It may be yours crossing onto a neighbour's land, or theirs crossing onto yours.

This article explains how people generally sort these problems out in Ontario: confirming the line, understanding how time and use can affect rights, and the practical choices of removal, a written arrangement or going to court.

First, confirm where the line is

Many encroachment disputes turn on a simple question: where is the boundary? The Ontario government says owners must settle boundary line disputes themselves, often with legal advice and a survey.

Under the Surveyors Act, no individual may practise cadastral surveying without a licence, limited licence or temporary licence, and cadastral surveying includes preparing plans and documents that determine or establish a boundary. The exception is that an unlicensed individual may do cadastral surveying work if it is done under the direction and supervision of a licensed member. If the location is genuinely doubtful, an owner of an interest in the parcel may apply to the Director of Titles to confirm the boundary, or a surveyor may apply with that owner's consent. A confirmed and certified boundary is deemed to be the true boundary despite any other Act.

How time and long use can change rights

No one may enter land or bring an action to recover land except within ten years after the right to do so first accrued. When that period expires, the right and title of the person who could have recovered the land is extinguished, which is the basis for adverse possession claims to land outside Land Titles.

For land registered under the Land Titles Act, no title or interest adverse to the registered owner can be acquired by any length of possession or prescription. There is an exception for a person who was in possession when the first owner was registered with a possessory title only.

Special situations can change the timing. A written acknowledgment of the owner's title affects when the limitation period runs. A person who was a minor or incapable when the right accrued may sue within five years after that ends, or after their death, whichever happens first. The Crown has sixty years to recover land, but sections 1 to 15 of the Real Property Limitations Act, including that sixty-year rule, do not apply to waste or vacant Crown land, whether surveyed or not. Because these rules turn on details, have a lawyer review your facts.

Easements: a right to use, not ownership

An easement is a right to use someone else's land for a purpose, such as a right of way. A claim to a right of way or other easement cannot be defeated if the right was actually used without interruption for the full period of twenty years, and after forty years of such use the right is absolute and indefeasible. The forty-year right does not arise if the use was enjoyed by consent or agreement expressly given for that purpose by deed or writing.

An act counts as an interruption only if the affected person put up with it or accepted it for one year after having notice of it. No one can acquire a right by prescription to the access and use of light or air for a building, with a narrow historical exception.

An easement is registered on title to the servient land, the land it crosses, and may also be registered on the dominant land that benefits. Unless the register says otherwise, all registered land is subject to existing easements. Prescriptive easements cannot start running after land is in Land Titles.

Removal, agreement or compensation

If something of your neighbour's crosses onto your land, the usual options are to ask for it to be removed or moved, to agree on a written arrangement such as an easement, or to start a court case. The right choice depends on the size of the encroachment, how long it has been there, how it affects you and what the title records show. Whether a court would order removal or money instead is a question for a lawyer who has reviewed your facts.

• Removal: you ask the neighbour to take down or move the structure, and a lawyer can advise whether to send a demand letter or start proceedings.
• Written arrangement: both owners agree on terms, and a lawyer can have it properly recorded, for example as a registered easement.
• Compensation: some disputes are settled with a payment, but how much and whether it is available depends on the facts.
• Fences: where a fence is built on the line itself, the Line Fences Act may help with cost-sharing and fence description, but it does not decide where the line is.

If a fence cannot practically go on the line, a fence-viewers' award may place it partly on either owner's land, and that location does not affect who owns the land.

What to do next

• Take dated photos of the encroachment and note when you first noticed it.
• Collect your deed, any survey and your property's title information.
• Hire a licensed surveyor to confirm the boundary.
• Before removing the structure or giving anyone permission, get advice, since written consent can matter for the 40-year rule.
• Speak with a real estate lawyer early, before time limits become an issue.

Frequently asked questions