Can You Sue a Neighbour for Encroachment in British Columbia?

Finding out that a neighbour's garage, shed or fence sits partly on your land is stressful. You may wonder whether you can force it to be removed, be paid, or both.

In British Columbia the main route is a court application under the Property Law Act, and it usually starts with a survey. This article explains the remedies, what a neighbour cannot claim just by using your land, and the time limits to keep in mind.

This article covers the law of British Columbia.

Where a boundary claim starts

The key provision is section 36 of the Property Law Act. It applies where a survey shows that a building encroaches on adjoining land, or that a fence is improperly placed so that it encloses adjoining land.

The trigger is the survey, so survey evidence is the foundation of the claim. For this section, an owner includes a person with an interest in, or right to possession of, land, so a tenant or other possessor can apply or be affected.

The remedies a court can choose

On application, the Supreme Court may choose among three outcomes.

• Declare an easement over the land for a period the court sets, on payment of the compensation the court determines.
• Vest title to the encroached or enclosed land in the encroaching owner, on payment of compensation.
• Order the owner to remove the encroachment or fence.

So removal is one possible result, but not the only one. The court weighs the options, and the outcome depends on the facts. A claim to remove an encroachment or vest title under this section is for the Supreme Court, not the Civil Resolution Tribunal.

Why long use does not give your neighbour your land

Many people worry that years of a neighbour using a strip of land will turn it into theirs. Generally, no right or title in or to land may be acquired by adverse possession, except as specifically provided by the Limitation Act or another Act. After an indefeasible title is registered, a title adverse to the registered owner's title is not acquired by length of possession.

Prescription is also abolished, so long use of a neighbour's strip does not create a prescriptive easement. There is a narrow exception: the Limitation Act does not interfere with rights to land acquired by adverse possession before July 1, 1975. If your land is old or unregistered, a lawyer can confirm where you stand.

The Limitation Act also does not apply to a claim for possession of land by a person who has been dispossessed in circumstances amounting to trespass.

Time limits to keep in mind

For many court claims, a proceeding must not be commenced more than 2 years after the day the claim is discovered. A claim is discovered on the first day you knew or reasonably ought to have known that loss occurred, that an act or omission caused it, that it was the defendant's, and that a court proceeding would be an appropriate means to seek a remedy.

There is also an outside limit of 15 years from the act or omission on which the claim is based. It can be extended if the defendant wilfully conceals the loss or its cause. A proceeding where the only relief sought is a declaration is outside the Act. Whether and how these rules apply to your particular application is worth confirming with a lawyer, because another enactment can set its own period.

What to do next

• Hire a surveyor and get a current survey showing exactly where the structure or fence sits.
• Collect your title documents, photos and any past correspondence with the neighbour.
• Write down when you first learned of the problem, since that date can matter for time limits.
• Raise the issue calmly in writing before taking formal steps.
• Speak with a lawyer about which remedy to ask for and whether compensation is likely to be part of the outcome.
• If you need access to adjoining land to repair your own building near a boundary, remember the Supreme Court can permit entry where consent is refused or cannot reasonably be obtained, and the order must require compensation for damage.

Frequently asked questions