Neighbour Built Over the Property Line in Ontario: Your Options

You have found that your neighbour's garage, shed, deck or addition sits partly on your land, or you have been told that yours sits on theirs. It is a stressful discovery, and the instinct is often to demand that it be torn down right away.

The law gives you several paths, and which one fits depends on the survey, how long the structure has been there and what you want in the end. This article explains the main tools in plain terms so you can ask better questions of a lawyer.

Start by confirming where the line really is

Everything else depends on the facts about the boundary. Fences, hedges and old stakes are often not on the legal line. A current survey from a licensed surveyor, along with your property's registered description, is the usual starting point.

If the only disagreement is where the boundary lies, there is no limitation period for a proceeding that seeks only a declaration with no further relief, such as a declaration of where the boundary is. That can be a useful first step when the structure itself is not the main concern.

What a court can order

A judge of the Superior Court of Justice may grant an interlocutory injunction or a mandatory order where it appears just or convenient to do so. In practice, this is the legal route to asking a court to stop construction or to require something already built to be dealt with.

A court that can grant an injunction may also award damages in addition to the injunction or in place of it. This means a court is not limited to an all-or-nothing choice, and money may be part of the result. What a judge decides in a particular case depends on the evidence and cannot be predicted from general rules.

If you only want money, the Small Claims Court hears money claims up to $50,000, not counting interest and costs. Claims above that amount are outside that limit. Whether a claim that also involves an injunction can be brought there is worth confirming with a lawyer.

Time limits that matter on both sides

The basic limitation period is two years from the day the claim was discovered. A claim is discovered on the earlier of the day you actually knew the relevant matters and the day a reasonable person in your circumstances ought to have known them, and you are presumed to have known on the day the act or omission happened unless you can prove otherwise.

There is also an ultimate period: no proceeding may be started after the 15th anniversary of the day the act or omission took place, whatever the date of discovery. The exception is a proceeding seeking only a declaration, such as a declaration of where a boundary lies, which has no limitation period.

Separate rules apply to land itself. An action to recover land must be brought within ten years, and when that period ends the right and title of the person who failed to act is extinguished. Do not assume you have time to wait; the right deadline depends on the facts.

Long use, adverse possession and easements

A neighbour who has used part of your land for many years may claim they now have rights to it. The ten-year limit for an action to recover land is one rule that may matter in that kind of situation. There is an important exception: 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.

That exception has its own exception. It does not defeat an adverse possession claim against a first owner registered with only a possessory title, if the claimant was in possession when that first owner was registered. Which system your land is under, and when it was converted, is something to check on the parcel register.

A right of way or other easement based on use cannot be defeated once it has been enjoyed for the full period of twenty years, and it becomes absolute after forty years, unless it was enjoyed under express consent given by deed or in writing. This is why written permission matters if you let a neighbour use part of your land.

What to do next

• Get a current survey and a copy of your property's parcel register.
• Photograph the structure and note when you first learned of it and when it was built.
• Do not tear down, alter or build on the disputed area yourself.
• Check whether any permit or written agreement exists for the structure.
• Write down the dates carefully, because limitation periods run from discovery.
• Speak with a real estate lawyer before sending a demand letter or signing anything.

Many encroachments end in a written agreement, a transfer of a small strip of land or a negotiated removal. A lawyer can explain which outcome is realistic for your situation.

Frequently asked questions