Neighbour Boundary Dispute and Encroachment in Ontario

You may have found out that a fence, driveway or shed is not where you thought the property line was. It might have come up when you ordered a survey, were selling, or had a conversation with a neighbour that went badly. It is a stressful position because it involves your home and a relationship you will have to live with.

Ontario has more than one process for these problems, and they do different jobs. This article explains the usual steps from getting a survey to reaching an agreement or going further, and where a lawyer can help. It is general information, not advice on your particular property.

Two different problems that get mixed up

People often use the word boundary dispute for two separate things. One is a disagreement about who pays for, builds or repairs a fence. The other is a disagreement about where the line actually runs. The tools for each are different, and picking the wrong one wastes time.

The Line Fences Act process lets adjoining owners ask the municipality for fence-viewers when no fence exists or an existing one needs repair. It decides how the fencing work is divided, but it does not decide where the boundary is. If your concern is that a shed or driveway sits over the line, that process will not answer it. The Act is clear that owners must resolve boundary disputes themselves.

Encroachment is the word for a structure or use that crosses onto a neighbour's land. Whether it matters legally, and what can be done about it, depends on the facts, such as how long it has been there and what the title documents say. A lawyer can confirm how that applies to your situation.

Step one: find out where the line really is

Before you speak to your neighbour in any formal way, confirm the facts. Fences are often built by earlier owners and may never have followed the legal line. A fence being in a certain place does not by itself tell you where the boundary is.

A survey by an Ontario Land Surveyor is the usual way to get a reliable answer. Keep in mind that a survey you already have may be old or may not have been prepared for the purpose you now need. If you later use the formal Boundaries Act process, the applicant needs a new survey prepared for Boundaries Act purposes by an Ontario Land Surveyor.

Your title and registration records are also part of the picture. Registration falls under the Land Titles Act or the Registry Act, depending on how your land is registered. Ontario's land registry services are online only. For land in the Land Titles system, reference plans can be submitted through ePlans in all land registry offices. Your lawyer or surveyor can pull the right documents for you.

• Gather your deed, any past surveys and your property's registration details.
• Photograph the fence, driveway, shed or other item and note roughly when it was built, if you know.
• Ask the surveyor to mark or show the line and the position of the structure in relation to it.
• Write down any past conversations or promises with the neighbour or earlier owners.
• Do not move, remove or alter the structure until you understand your options.

Step two: talk to your neighbour first

Once you know where the line is, a calm, factual conversation often resolves more than a formal process. Share the survey, ask how the structure came to be there, and say what outcome you would like. Many people would rather agree on moving a fence or shed than go through a hearing.

If you reach an understanding, put it in writing. A written agreement that both sides sign is far better than a handshake, especially if either of you may sell. What the agreement should say, and whether anything should be registered on title, depends on your property, so a lawyer should review it before you sign.

The formal routes compared

If talking does not work, two government-run processes are relevant, and they answer different questions.

Under the Boundaries Act process, adjoining owners receive notice from the Director of Titles, and objections are generally due within 30 days. If someone objects, a hearing follows, and the onus of proof is on the applicant. Appeals go to the Superior Court within 30 days.

Because the applicant carries the burden, the quality of the survey and the supporting evidence matters a great deal. If you receive a notice from the Director of Titles about your neighbour's application, note the 30-day objection window right away and get advice quickly.

When a court may come into it

Some disputes cannot be settled by agreement or by the processes above, for example where a neighbour will not move a structure or claims a right to land you believe is yours. How a dispute like that is taken further depends on your situation, so it is worth confirming with a lawyer. The Boundaries Act appeal route is one way a court becomes involved.

Other court claims about encroachments depend on the history of the land and the specific facts, and they can be slow and costly. Which claim fits, what you would have to prove and what a judge could order are questions to put to a lawyer after they have seen your survey and title documents.

What to do next

Take things in order and avoid acting in anger. A few careful steps early usually protect you better than a fast confrontation.

• Get a current survey from an Ontario Land Surveyor and keep a copy with your title documents.
• Decide whether your issue is about fence costs or about the boundary itself, since the Line Fences Act does not decide the boundary.
• Speak to your neighbour with the facts, and record any agreement in writing.
• If you are selling or buying, tell your lawyer about the encroachment before closing.
• Diarize every deadline in a notice, including the 30-day objection and appeal periods under the Boundaries Act process.
• Speak with a real estate lawyer before you sign anything, remove a structure, or start any formal process.

Frequently asked questions