The Fence Was Two Feet Onto the Neighbour's Land

The situation

Natalia, a software developer, closed on a freehold townhome in Richmond Hill in the spring, paying roughly $985,000 for a unit in a common-elements condominium corporation — a form of ownership common in newer townhome developments, where each owner holds title to their own house and yard just as any freehold owner would, while the roads, visitor parking, and other shared spaces are owned and maintained by the condominium corporation on everyone's behalf. She was buying alone, using savings built up over several years plus a standard mortgage, and the purchase went the way most do: an agreement of purchase and sale, a home inspection that turned up nothing alarming, and a closing that happened without drama. Treadstone Law acted for her on the closing, which included the standard step of arranging a title insurance policy — a one-time premium paid at closing that protects an owner against certain defects in the property's title and boundaries that were not apparent, and could not reasonably have been discovered, at the time of purchase.

The property came with an existing survey, prepared for a previous owner some years earlier, showing the side yard fence sitting a few inches inside the property line — unremarkable, and well within what buyers see on almost every survey in a townhome row. Natalia moved in that summer. The dispute did not surface for almost a year, and when it did, it came from the neighbouring property, not from anything wrong with her own paperwork.

What the review found

The following spring, the neighbouring property sold to a police sergeant named Bohdan. As part of that sale, Bohdan's own surveyor, Tomasz, was walking the boundary and found something the older survey had missed: the side fence — the same fence shown a few inches inside Natalia's line on her survey — actually jogged outward partway along its run and, for roughly the back third of the yard, sat about two feet onto the neighbouring lot. A garden shed Natalia had installed the previous fall, believing she was well within her own property, straddled the boundary as a result.

Bohdan's lawyer raised it before their closing, and it became Natalia's problem within days: the shed and a section of fencing were, on paper, an encroachment — a structure belonging to one property that physically extends onto a neighbouring one. A longstanding fence does not automatically transfer ownership of the strip of land beneath it. Ontario land is registered under one of two systems, and which one applies changes the answer. Both properties here were registered under the land titles system, which now covers the large majority of the province and which generally bars a neighbour from ever acquiring land through long, unchallenged use. What the land titles register guarantees is ownership, not the precise location of the boundary — where the line itself is in dispute, that gets settled by survey evidence, and can be fixed permanently through a boundaries application. Under the older registry system, which still governs some older properties and rural land, a long-standing encroachment can in narrow circumstances mature into a possessory claim, provided the use began and was already complete before the property was converted to land titles. Because Richmond Hill land was well within the land titles system with no older claim in play, there was no realistic possibility that the neighbour who had tolerated the fence for years had thereby signed away the strip of land underneath it — the encroachment problem here was purely about tidying up the boundary, not about who legally owned it. Bohdan's lawyer wanted the encroachment resolved before their closing — either the structures removed, or a permanent legal right to keep them in place, registered on title.

Natalia had not caused the fence to be in the wrong place — it had been built by owners before her, on both sides of the boundary, years before she ever saw the property. Her home inspection would never have caught it; boundary location is a survey question, not a structural one, and inspectors do not typically re-survey a lot. This was exactly the kind of defect title insurance exists for: a problem with the property's boundaries that existed before her ownership began and that a buyer, acting reasonably, could not have discovered through a normal purchase process.

Natalia's first instinct was to call Bohdan directly. That conversation went nowhere useful — he had only just bought the property and had no personal history with the fence either, and neither of them had any real authority to agree to anything binding without lawyers involved and, eventually, a change registered against title. Boundary problems have a way of feeling like a dispute between neighbours when they are, underneath, a title problem: whatever gets agreed has to be documented and registered correctly, or it solves nothing for whoever owns either property next.

What we did

1. Confirmed the policy was still active and reviewed its terms. Title insurance policies for owners typically remain in force for as long as the owner holds the property, with no renewal required, so the one purchased a year earlier at closing was still Natalia's protection. We pulled the policy and confirmed encroachments of this kind — pre-existing structures crossing a boundary, undiscoverable at the time of purchase — fell within its coverage.
2. Opened a claim with the title insurer promptly. We gathered the original survey, Tomasz's report showing the corrected boundary, photographs of the shed and fence line, and a short summary of the timeline, then submitted the claim. Insurers move faster with a complete file the first time than with one that arrives in pieces, and a delay in opening the claim would only have given the neighbouring closing less room to wait for a resolution.
3. Coordinated with Bohdan's lawyer directly. Rather than let the dispute sit while the insurer worked through it, we opened communication with the other side to explain that a claim was in motion and to ask for a short window before their closing proceeded, so the resolution wouldn't collapse into a rushed, adversarial fix under deadline pressure. Keeping the other lawyer informed also meant nobody on that side felt the need to escalate to their own litigation just to protect their closing date.
4. Worked with the insurer's chosen approach. The insurer had two realistic paths: pay to relocate the shed and the offending section of fence back onto Natalia's side of the line, or negotiate and pay for a registered easement — a formal, permanent legal right for the encroaching structures to remain, running with the land for future owners on both sides. The insurer determined the shed could be moved at modest cost, while the fence jog was minor enough that an easement was the more practical fix.
5. Reviewed the easement terms before registration. Where a right is going to be registered permanently against a client's title, it needs to be reviewed for scope and duration before it's signed off, not after. We confirmed the easement was narrowly drafted to cover only the small existing encroachment, would not restrict Natalia's other use of her yard, and would not create an obligation to maintain the neighbouring owner's fence.

The outcome

The claim was accepted, and the insurer covered the cost of relocating the shed — a few thousand dollars — and negotiated and paid for the registered easement covering the fence jog, all within the range the policy contemplated for this kind of defect. Natalia paid nothing beyond the original one-time premium she had already paid at closing the year before. The neighbouring sale closed on schedule once the easement was registered, and Bohdan took title with the boundary question already resolved rather than inherited.

Natalia kept the shed, just moved a few feet, and kept full use of her yard. The episode cost her some inconvenience and a stretch of uncertainty while the claim was processed — insurers typically take several weeks to investigate and resolve a claim of this kind, not days — but no money out of pocket and no litigation. Had she not held a policy, her options would have been narrower and slower: negotiate directly with a neighbour she'd never met, retain a lawyer privately to draft and register an easement at her own expense, or face a claim for removal with the cost falling entirely on her. Instead, the premium she paid once, at closing, quietly did the job it was bought for a year later, when a problem she had no way of anticipating showed up on her doorstep.

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