Suing a Neighbour for Building on Your Land in British Columbia

You have found that a neighbour's garage, addition, retaining wall or fence sits partly on your lot. It is upsetting, and it raises practical questions: how do you prove it, what do you say to the neighbour, and what can a court actually order?

This article explains the main legal tools in British Columbia, why a survey comes first, and the time limits and exceptions worth knowing before you act. It is general information, not advice on your particular boundary.

This article covers the law of British Columbia.

Start with a survey, not an argument

The statutory route for an encroaching building or a fence that is improperly placed is section 36 of the Property Law Act, and it is triggered by a survey showing the encroachment. In practice, that means survey evidence is the foundation of the whole claim. Fence lines and old landmarks are often not where the legal boundary is, so a current survey from a qualified surveyor protects you from accusing a neighbour wrongly.

For section 36, "owner" includes a person with an interest in, or right to possession of, the land, so a tenant or other possessor can apply or be affected.

• Your title documents and any earlier survey or plan
• A current survey showing the boundary and the encroaching structure
• Dated photographs of the structure and when it appeared
• Any permits, correspondence or conversations about the construction
• Notes of when you first noticed the problem

The demand letter and talking first

Before going to court, most owners send a written request that sets out what the survey shows and what they want: removal, a negotiated agreement, or a sale of the strip. A calm, documented approach often resolves things, and it also shows a court you tried to be reasonable. If you do reach a deal, put it in writing and ask a lawyer how best to document it.

Be cautious about self-help, such as tearing down a fence or building. Whether that is lawful depends on the facts, and it can create a new dispute against you.

What the court can order

On an application under section 36(2), the Supreme Court may declare an easement over the land for a period it sets, on payment of compensation it determines; vest title to the encroached or enclosed land in the encroaching owner on payment of compensation; or order the owner to remove the encroachment or fence. The court chooses among these options, so removal is not automatic.

Because the court sets compensation, the amount depends on the facts, and a lawyer can help you assess what to expect. A claim to remove an encroachment or vest title is a matter for the Supreme Court, not the Civil Resolution Tribunal.

Time limits and what does not help the neighbour

Many claims must be started within 2 years of the day they are discovered, which is the first day you knew or reasonably ought to have known of the loss, that an act caused it, that it was the defendant's, and that a court proceeding was appropriate. There is also a 15-year outer limit running from the act or omission. These periods have exceptions, and the Limitation Act does not apply to a claim whose limitation period is set by another enactment. The Act also does not apply to a claim to recover possession of land by a person dispossessed in circumstances amounting to trespass. Because the interaction is technical, get advice early rather than waiting.

On the other side, a neighbour cannot generally gain your land by simply using it for years. No right or title to land may be acquired by adverse possession except as specifically provided by law, and after an indefeasible title is registered, an adverse title is not acquired by length of possession. Prescriptive easements have been abolished. The Limitation Act does not interfere with title to land acquired by adverse possession before July 1, 1975. Whether any older right affects your land depends on its history, so it is worth confirming with a lawyer.

There is a further point if the mistake is in the title itself. A person can show that land is improperly included in a title by wrong description of boundaries or parcels.

What to do next

• Order a current survey and keep the report.
• Collect photos, permits and correspondence in one folder.
• Send a calm written request to the neighbour, and keep a copy.
• Do not remove or alter the structure yourself.
• Talk to a lawyer before the 2-year discovery period gets close.
• Check whether your mortgage lender or title insurer should be told.

Frequently asked questions