The Fence Was Never Where the Survey Said It Was

The situation

Rabia, a commercial landlord, and Femi, a retired business owner, were finally upsizing. Their three children, including their eldest, Vivian, had outgrown the house they had owned for eleven years, and after months of searching they made an offer on a property in an established Mississauga neighbourhood, priced at roughly $2,100,000. The home had a mature, fully fenced backyard — one of the things that sold them on it, since privacy at that price point in the area was hard to come by.

Their agreement of purchase and sale included a condition requiring a new survey, standard practice for a resale in an older subdivision where the last survey on file was decades out of date. Most of the time this condition is a formality: the surveyor confirms the fences roughly match the registered lot lines, and the file moves on. This time it did not. The new survey, prepared about three weeks before the scheduled closing, showed the side fence running well inside the neighbouring property — by approximately 1.2 metres along a fence line roughly 30 metres long, a strip of just over 35 square metres that the sellers had been treating as part of their own backyard for years.

The sellers' lawyer forwarded the survey to the neighbour as a courtesy, expecting a quiet correction. Instead, the neighbour's response was that the strip was his to keep — he said his family had understood the fence to be the true line since it went up, long before the current sellers ever bought the house, and that he intended to assert a claim to it. That single letter put the closing, and the size of the backyard Rabia and Femi thought they were buying, in question with weeks to go.

What the survey found

The legal issue behind the neighbour's letter is called adverse possession — sometimes referred to as squatter's rights. Historically, Ontario law allowed a person who occupied land openly, continuously, exclusively and without the true owner's permission for a long enough period to eventually gain legal title to it, displacing the registered owner. The idea was that a boundary treated as real for long enough, without objection, should eventually become the legal boundary.

That doctrine still exists for land registered under the older registry system, but it has been effectively closed off for land under Ontario's land titles system, which now covers the overwhelming majority of properties in the province, including this one. Once a property is converted to land titles, adverse possession claims generally cannot arise from occupation after the conversion date — the registered boundary controls going forward. Older claims, if they had already matured to the point of ripening into title before conversion, can sometimes survive as an exception, which is precisely why the date of conversion and the history of the fence mattered so much here.

We pulled the parcel register and confirmed the property had converted to land titles years earlier. We also had the surveyor investigate the fence's age using the physical evidence available — post depth, materials and weathering — alongside whatever documentary history existed. The fence, on the evidence gathered, had been rebuilt on the same alignment roughly a decade before the land titles conversion, but nothing in the file supported the neighbour's claim that occupation of the disputed strip had continued long enough, and in the right form, to have ripened into ownership before the conversion cut off new claims. His position rested more on family recollection than on anything that would satisfy a court's evidentiary bar for adverse possession, which requires clear and convincing proof of the required years of exclusive, uninterrupted use.

That did not make the claim frivolous to ignore. An uncertain boundary, even a weak claim, is exactly the kind of defect a title insurance policy and a careful buyer's lawyer exist to catch before it becomes the new owners' problem instead of the sellers'.

What we did

1. Paused the closing timeline in writing. Rather than let the condition lapse or waive it under pressure, we notified the sellers' lawyer that Rabia and Femi required the boundary issue resolved, or satisfactory title insurance arranged, before they would proceed — using the leverage the survey condition gave them rather than losing it.
2. Reviewed the chain of title and prior surveys. We requested any older surveys, building permits or severance documents in the sellers' file that might show where the fence sat historically, and compared them against the new survey to establish exactly how long the current alignment had existed.
3. Pushed the dispute back onto the sellers. Under the agreement of purchase and sale, the sellers were obligated to deliver good title, free of this kind of undisclosed encroachment claim. We took the position that resolving the neighbour's claim, or compensating for it, was the sellers' responsibility, not something Rabia and Femi should absorb by closing anyway and inheriting a dispute with their new neighbour.
4. Negotiated a written release. Facing a weak claim and a buyer prepared to walk, the neighbour agreed to sign a boundary release and acknowledgment confirming the registered line as the true line, in exchange for the sellers replacing a short run of fencing and covering a modest amount toward the neighbour's own legal costs of about $3,000. The release was registered on title alongside the new survey so any future buyer would see the matter as closed.
5. Arranged a title insurance policy regardless. Even with the release in hand, we ensured the purchase closed with a title insurance policy that specifically addressed boundary and survey matters, giving Rabia and Femi a further layer of protection if anything about the historical fence line ever resurfaced.

The outcome

Closing was delayed by about three weeks while the release was negotiated and registered, but it went ahead on the terms Rabia and Femi had originally bargained for: the full backyard, the fence line matching the registered boundary, and no live dispute with the people next door before they had even moved in. The roughly $3,000 the sellers paid the neighbour came out of the sale proceeds, not out of Rabia and Femi's pocket, and the fence repair became the sellers' arrangement to complete.

What made this a clean result was catching the problem at the survey stage, while the buyers still had a condition to lean on and before any money beyond the deposit had changed hands. Had the survey condition already been waived, or had the property still sat under the older registry system where adverse possession claims remain very much alive, the outcome could have looked entirely different — a boundary lawsuit against a neighbour, fought after closing, with legal costs and an uncertain result instead of a negotiated release folded quietly into the transaction.

Rabia and Femi moved in on schedule, minus the three-week delay, with a fence that matched their deed and a documented release sitting on title in case the question was ever raised again.

What you can learn from this