- A structure over the boundary is a problem to sort out before closing, and the options usually involve negotiation, removal or a written agreement with the neighbour.
- Any document that must be registered should be prepared properly, and the Registry advises engaging a lawyer.
- The seller of land for value is treated as covenanting that the property is free of encumbrances except those expressly accepted.
A survey on a house you are buying or selling may show a shed, fence or deck that crosses the boundary. It can be unsettling, especially with a closing date approaching.
How this plays out depends on the facts, the wording of the agreement of purchase and sale, and the neighbour. This article sets out the usual options and the practical steps to take, and it is not a substitute for advice on your own property.
This article covers the law of Newfoundland and Labrador.
Why it matters before closing
A structure over the line can raise questions about exactly what is being sold and whether a neighbour may have a claim. Buyers often make their offer conditional on a satisfactory survey or review, and the time allowed for that is set by the conditions in the offer itself.
For a conveyance for valuable consideration, other than a mortgage, the grantor is treated as covenanting that they have full power to convey as beneficial owner and that the property is free of encumbrances except those expressly accepted. Whether a particular encroachment affects that covenant depends on the facts, so ask a lawyer.
The main options
| Option | What it generally involves |
|---|---|
| Remove or move the structure | The owner takes the shed, fence or deck back onto their own land before closing. |
| Negotiate with the other side | Buyer and seller agree on a price change, a holdback or another term in writing. |
| Neighbour's agreement | The neighbour agrees in writing to how the structure and boundary will be treated. |
| Walk away | If your offer has a condition that is not satisfied, you may be able to end the deal under its terms. |
Which option fits depends on who owns the structure, whose land it sits on, and what your agreement says.
Working with the seller and the neighbour
Raise the survey result with your real estate agent and lawyer right away. A real estate agent may prepare and deliver a formal agreement of sale they negotiated, but a document relating to real property that must be registered in a public office is part of the practice of law.
If you reach a written agreement with a neighbour and it needs to be registered, the document should carry an accurate written property description. The Registrar may refuse an instrument with a missing legible property description. The Registry advises engaging a lawyer to prepare documents to ensure compliance and facilitate registration.
Registration matters. An instrument that has not been proved and registered can be void against a later purchaser or mortgagee for value who registers first. An informal handshake agreement with a neighbour may not protect a future owner.
Checking what is already registered
The Registry of Deeds is open to the public, and each registered document may show property descriptions, liens against property and the consideration paid. The Government of Newfoundland and Labrador recommends a professional search firm or lawyer because title searching is complicated. The registry gives notice and priority but is not a title guarantee.
What to do next
- Get a copy of the survey and your agreement of purchase and sale, including conditions and dates.
- Tell your lawyer and real estate agent about the encroachment immediately.
- Find out who built and owns the structure and whether the neighbour is aware of it.
- Ask your lawyer whether to negotiate, require removal, or seek a written agreement.
- Confirm any mortgage lender's requirements about the survey before you waive conditions.
- Do not remove or alter a structure on someone else's land without advice.
Frequently asked questions
Can I still close if the survey shows a shed over the line?
Sometimes, but it depends on your agreement, your lender and how the issue is resolved. A lawyer can advise on whether to close, negotiate or require a fix first.
Who pays to move the structure?
That is a matter for negotiation and depends on who owns the structure and the terms of the agreement. Get any arrangement in writing.
Do I need my neighbour's agreement?
Often it helps, especially if the structure will stay. If the agreement is to be registered, it should include an accurate written property description, and the Registry of Deeds says it is advisable to engage a lawyer to prepare the documents to ensure compliance and facilitate registration.
Does the registry guarantee the boundary?
No. The registry provides notice and priority but is not a title guarantee. A survey and legal advice address the boundary question.
Sources
- Government of NL – Registering a Deed Document — gov.nl.ca
- Law Society Act, 1999, SNL1999 c L-9.1, s. 2(2)(c)(iv) — assembly.nl.ca
- Registration of Deeds Act, 2009, s. 37 — assembly.nl.ca
- Government of NL – Title Searching Information — gov.nl.ca
- Conveyancing Act, RSNL1990 c C-34, s. 4 — assembly.nl.ca
- Real Estate Trading Act, RSNL1990 c R-2 — assembly.nl.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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