Encroachments in Ontario: When a Structure Crosses the Property Line

An encroachment occurs when a physical structure — a garage, deck, fence, shed, eave, retaining wall, or even a building foundation — extends beyond its owner's property and onto neighbouring land. Encroachments are surprisingly common in Ontario, especially in older neighbourhoods where original survey pins may be lost, or where generations of neighbours assumed an informal boundary that turns out not to be the legal one.

Discovering an encroachment is almost always stressful. Whether you are the one encroached upon or the one doing the encroaching (often unknowingly), the stakes are high: you may be dealing with a forced structure removal, a legal agreement, a title complication, or a dispute that blocks a property sale.

How Encroachments Are Discovered

Most encroachments surface at one of three moments:

1. A new survey commissioned for a building permit or renovation. The survey shows that what everyone assumed was within the lot is actually 14 inches over the property line.
2. A real estate transaction. A buyer's lawyer requests an up-to-date survey and the encroachment appears on title or in the survey sketch.
3. A dispute with a neighbour. Someone wants to build and hires a surveyor, and the existing structures do not line up with the legal boundaries.

An encroachment that has gone unnoticed for years does not automatically resolve itself. Once discovered, it requires an active legal response.

What the Encroached-Upon Owner Can Do

If someone else's structure sits on your land, you have several options — arranged from least confrontational to most:

1. Negotiate an Encroachment Agreement

An encroachment agreement (sometimes called a licence to encroach) is a formal written agreement between the two owners that:

• Acknowledges the encroachment.
• Permits the encroaching structure to remain for a specified period or indefinitely.
• Sets out terms — possibly including compensation, maintenance obligations, and what happens if the structure is eventually removed or rebuilt.
• Is registered on title so that future owners of both properties are bound by it.

This is often the most practical solution, particularly where the encroachment is minor (a few inches of eave or fence) and removal would be disproportionately expensive.

2. Demand Removal

The encroached-upon owner can demand that the structure be removed and the land restored. If the encroaching owner refuses, this becomes a court matter. Courts have the power to order removal — but they will also weigh the cost and hardship of removal against the degree of encroachment and the impact on the affected owner.

3. Seek Compensation Without Removal

In some cases, the affected owner may not want removal — they want financial compensation for the use of their land. Courts can award damages representing the value of the encroachment, effectively requiring the encroaching owner to "pay" for the land used.

What the Encroaching Owner's Options Are

If you discover your structure encroaches on a neighbour's land:

• Do not simply deny it. A current survey is the starting point. Once confirmed, ignoring the problem rarely works — it can complicate a future sale or build.
• Engage your neighbour promptly. An honest, early conversation often leads to an encroachment agreement that both parties can live with.
• Consult a lawyer before agreeing to removal. Removing a garage or deck that encroaches by a few inches can cost tens of thousands of dollars. A lawyer can help negotiate a proportionate solution.

What Courts Consider When Ordering Removal

Ontario courts do not automatically order removal of an encroaching structure. They apply a balancing test that considers:

• The size of the encroachment: A few centimetres of eave is treated very differently from half a garage.
• The degree of hardship to the encroaching owner: Removing a foundation is vastly more burdensome than moving a fence.
• Whether the encroachment was innocent or deliberate: Accidental encroachments receive more judicial sympathy than willful ones.
• Whether the affected owner has suffered actual harm or prejudice: Courts are reluctant to order expensive remediation where the practical effect on the affected owner is minimal.
• Compensation as an alternative: If the balance tips toward allowing the encroachment to remain, courts may award damages instead of ordering removal.

Encroachments and Real Estate Transactions

Encroachments on title are a problem in real estate deals. When a survey reveals an encroachment:

• Buyers should understand what they are taking on — both the risk that they are encroaching on a neighbour's land and the risk that a neighbour's structure encroaches on the property they are buying.
• Sellers have a disclosure obligation — knowingly concealing a material encroachment can create post-closing liability.
• Lenders may refuse to advance mortgage funds where an unresolved encroachment affects the security.
• Title insurance may cover some encroachment scenarios — review the policy carefully and confirm with the insurer.

Encroachment agreements or court orders resolving the issue before closing are usually required to move forward.

The Role of a Survey

A current survey by a licensed Ontario land surveyor (OLS) is essential. Surveys from decades ago may not show recent structures, and older technologies produce less precise measurements. A survey pinpoints the property line and shows exactly how far — and in which direction — the structure crosses it. This evidence is the foundation of any negotiation or court proceeding.

Frequently asked questions