Dealing with Property Encroachment

Reading Time: 3 minutes

Key Takeaway
Encroachments are stressful on the property owners because of the uncertainty. Help clarify the process for your client by educating them on the steps and referring them to a good lawyer.

Property encroachments cause neighbours to fight.

Usually, it's about the location of a shed, fence, or driveway. And sometimes, they call their real estate agents about it.

So here's a quick guide on how these issues are resolved - so you're prepared for that phone call.

Step 1: Verify the Boundary Lines

This will somewhat depend on which side of the issue your client is on.

If your client believes that a neighbour's structure is encroaching onto their property, they will need to verify this through a survey. If there is no recent survey, one will need to be commissioned by a licensed Ontario Land Surveyor. These can run $3,000-$5,000.

If your client's neighbour is accusing them of encroaching onto their property, you can advise them to ask the claimant for a survey proving the encroachment.

Typically, the cost of the survey will be the responsibility of the person making the encroachment claim, since they will need it as evidence.

Step 2: Send a Demand Letter

If the survey confirms the encroachment, the claimant will want to send out a demand letter to their neighbour. It can be drafted by a lawyer, or by the property owner themselves, and should include a copy of the survey for reference.

Despite the name, it does not have to be confrontational. The demand letter should state the issue, provide evidence from the survey, and request the removal or rectification of the encroachment within a specified timeframe.

Ideally, this letter sets the stage for the neighbours to confirm there is a real issue and work towards a solution.

Step 3: Initiate Legal Action

Ideally, you don't want step 3. It's the last resort when it comes to encroachment.

A survey should be enough evidence for both parties to recognize there is an issue that needs to be resolved, but for those difficult neighbourly relationships, legal action may be necessary.

Advise the client to speak with their real estate lawyer to initiate the formal legal process. It may involve filing a lawsuit, seeking an injunction to remove the encroachment, and/or pursuing damages.

Written by
Zachary Soccio-Marandola
Real Estate Lawyer

Direct: (647) 797-6881

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