What Is an Encroachment and How Is It Handled in Alberta?

You order a Real Property Report, or your buyer's lawyer asks for one, and the drawing shows something crossing a line. It might be your fence, deck or garage sitting over the property line, or a neighbour's structure sitting on your land. That is an encroachment, and it can stall a sale if it is not dealt with.

The good news is that encroachments are common and there are usually several ways to handle them. Which one fits depends on whose land is involved, what the structure is and what your municipality will accept. This article explains the process in plain terms so you know what to ask.

This article covers the law of Alberta.

What an encroachment is and how it shows up

In plain words, an encroachment is a building, fence, deck, eave or other improvement that crosses a boundary. It can cross onto a neighbour's lot, onto municipal land, or it can be a neighbour's improvement crossing onto yours.

An RPR is a service provided by an Alberta Land Surveyor, and only a person registered under the Land Surveyors Act may practise surveying in Alberta. The surveyor prepares the report, but does not decide whether it complies with municipal bylaws. That decision is made by the municipality, which is why the report and the municipal review are two separate steps.

Why it matters when you sell or buy

Most standard residential purchase contracts in Alberta require the seller to give the buyer a current RPR with a municipal stamp of compliance, and this is a contractual term rather than a statutory requirement. Buyers' lenders and lawyers usually require a current RPR as well, and the buyer's lawyer needs reasonable time to review it before funds are released.

So an encroachment found late can delay a closing. Ideally buyers see the RPR before making an offer. If you are the seller, it is worth getting the report early enough to deal with problems before you list.

The usual ways to resolve an encroachment

There is no single fix. The options below are the common approaches, and a lawyer can tell you which are realistic for your situation.

• Remove or move the structure so it sits fully on the correct property. This is often the cleanest result, but it costs money and may not suit a large or permanent structure.
• Seek a variance or relaxation from the municipality where the problem is a bylaw issue such as a setback. If the review finds a non-compliant item, the seller is typically expected to resolve it, for example this way, before the stamp is given. Whether a relaxation is available differs between municipalities.
• Talk with the neighbour about whether some kind of written arrangement is possible. How this applies depends on your situation, so it is worth confirming with a lawyer before you sign anything.
• Negotiate with the buyer or seller about how to handle the issue in the purchase contract. Any change to the contract should be in writing and reviewed before you sign.

What the municipal stamp does and does not cover

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

In practice, a stamp from the municipality does not by itself settle a dispute or arrangement with a neighbour. If your encroachment involves a neighbour, the stamp and any agreement with them are separate questions.

Also remember that a stamp relates to the RPR it was issued on. If the property changes, you need a new or updated RPR and a new municipal review, so the old stamp cannot simply be reused.

What to do next

• Read the RPR notes and drawing carefully, and ask the surveyor to explain anything unclear.
• Work out whose land the structure is on, and whether the issue is with a neighbour, the municipality or both.
• Contact your municipality, in person if required, about its process for compliance stamps and any relaxation.
• Keep your lawyer and real estate representative informed before you agree to anything with a neighbour or in the purchase contract.
• Get any agreement with a neighbour in writing and have it reviewed before you sign.

Because municipal practice and each property's facts vary, a lawyer can confirm which option is likely to work for you.

Frequently asked questions