Encroachment on a Real Property Report in Alberta: Your Options

You have a Real Property Report in hand and it shows something crossing a boundary. It might be a fence, a deck, a garage or an eaves overhang that sits on a neighbour's land, an easement or a road allowance. That can be unsettling, especially if a purchase is close to completion.

An encroachment is not always the end of a deal, but it does need a plan. This article explains what the RPR and the municipal stamp do, who is usually expected to deal with the problem, and what questions to take to a lawyer.

This article covers the law of Alberta.

What the RPR does and does not tell you

An RPR is a service provided by an Alberta Land Surveyor, the only kind of person who may practise surveying in Alberta. The surveyor prepares the report and shows where the improvements sit. The surveyor does not decide whether the report complies with municipal bylaws.

That second step belongs to the municipality. The owner must take the RPR to the municipality, in person, to obtain a compliance stamp.

A stamp has limits. It confirms only that the improvements shown on the RPR meet the municipality's requirements. It does not mean the use of the building complies with the Land Use Bylaw, and it does not address easements, covenants, legislation or other requirements affecting the land or buildings.

Who deals with an encroachment when you are buying

If the review finds a non-compliant item, such as an encroachment or a setback problem, the seller is typically expected to resolve it before the stamp is given. One example is seeking a variance or relaxation from the municipality.

Most standard residential purchase contracts in Alberta require the seller to give the buyer a current RPR with a municipal stamp of compliance. That is a contract term, not a statutory requirement. So what your contract says matters a great deal, and it is worth having a lawyer read it before you decide how to respond.

Buyers' lenders and lawyers usually require a current RPR, and your lawyer needs reasonable time to review it before funds are released. Ideally you see the RPR before making an offer.

Common ways an encroachment may be handled

There is no single fix. What is realistic depends on whose land the improvement sits on, how serious it is, and what the municipality or the other party will accept. These are the paths people commonly ask about.

• Removal or modification: the structure is moved, trimmed back or taken down so that it sits within the property.
• A relaxation or variance: the municipality may be asked to relax a requirement for a setback problem. Whether this is available differs between municipalities.
• A written agreement: where the improvement is on a neighbour's land, an easement or a road allowance, a lawyer can explain whether an agreement with the owner or authority is possible and how it would be recorded.
• Title insurance: a lawyer or insurer can explain what a policy would and would not cover for a known problem. Insurers often treat a known issue differently from an unknown one.

Names, fees, turnaround times and whether a relaxation is available all vary by municipality, so check with the one where the property is located.

Old RPRs, statutory declarations and changes to the property

Sometimes a seller offers an older RPR. Where nothing on the property has changed since the existing RPR, the seller may sign a Statutory Declaration or Affidavit stating that the RPR is accurate and the property is in the same state as at the date of the original RPR.

If the property has changed, such as a new deck or garage, a declaration is not enough. Only an updated RPR with a compliance stamp can confirm that the property complies with municipal regulations. A stamp relates to the RPR it was issued on, so a changed property needs a new or updated RPR and a new municipal review. The old stamp cannot simply be reused.

What to do next

• Read the RPR notes carefully and ask the surveyor to explain what is shown and where.
• Find out whether the encroachment is on a neighbour's land, an easement or a road allowance, because the solution may differ.
• Check your purchase contract for the RPR clause and any deadlines.
• Ask the municipality what it requires and whether a variance or relaxation is possible.
• Book a lawyer early, so there is time to review the RPR before funds are released.
• If you are the owner and not selling yet, ask a lawyer whether to deal with it now rather than at the time of a sale.

Do not remove, build or sign an agreement before you understand the effect on your title. A lawyer can confirm the options for your situation.

Frequently asked questions