What the Law Says About Encroachment in Canada

Property encroachment—such as a fence, deck, or shed crossing onto your land—is governed primarily by provincial real property and civil procedure laws, not federal statutes.

In Canada, land ownership is defined by the provincial Land Titles or Registry Systems. Encroachment occurs when a neighbour’s structure or improvement physically intrudes onto your legally registered parcel. Under the common law principle affirmed in *Henderson v. Dobbie* (2018 BCSC 102), mere long-term use does not confer ownership unless strict adverse possession criteria are met—including open, notorious, exclusive, and continuous possession for the statutory limitation period (typically 10 years in Ontario, Alberta, and BC under their respective Limitations Acts). Importantly, the *Surveyors Act* (in each province) requires that only a licensed Ontario Land Surveyor (OLS), BC Land Surveyor (BCLS), or equivalent may legally establish or re-establish parcel boundaries.

Provincial statutes provide specific remedies: In Ontario, the *Real Property Act*, R.S.O. 1990, c. R.20, s. 50 permits courts to order removal or compensation for encroachments. In British Columbia, the *Real Property Act*, R.S.B.C. 1996, c. 377, s. 27 allows the court to grant title to the encroaching portion—or order its removal—if certain fairness conditions are satisfied. Quebec follows the Civil Code of Québec, art. 976–980, which emphasizes good neighbourliness ('bonne foi') and permits judicial partition or compensation where encroachment is minor and removal would cause disproportionate hardship.

How to Take Action Step-by-Step

Resolving encroachment requires methodical, documented action—from verification to enforcement—to preserve your rights and avoid escalation.

Step 1: Confirm the encroachment with a certified land survey. Do not rely on municipal maps, old fences, or verbal agreements. Hire a provincially licensed surveyor (e.g., an OLS in Ontario or BCLS in BC); their ‘Surveyor’s Real Property Report’ (SRPR) is admissible evidence in court. Step 2: Send a dated, signed letter to your neighbour outlining the encroachment, attaching the survey, and requesting voluntary correction within 30 days. Keep proof of delivery (e.g., registered mail or email with read receipt). Step 3: If unresolved, contact your municipality—many enforce zoning bylaws prohibiting structures over property lines (e.g., Calgary Land Use Bylaw No. Z-10, s. 220). Step 4: File a claim in Small Claims Court (for claims ≤ $35,000 in most provinces) or Superior Court seeking removal, damages, or a court-ordered boundary adjustment. In Ontario, use Form 14A (Application for Injunction) under Rule 14.05; in BC, file a Notice of Civil Claim in the Supreme Court under Rule 2–1 of the *Supreme Court Civil Rules*.

Practical Tips to Protect Your Rights

Prevention and early intervention significantly increase the likelihood of a low-cost, amicable resolution.

Preserve all records: Keep copies of deeds, surveys, correspondence, photos (with timestamps), and notes of conversations. Courts weigh diligence heavily—delaying action may weaken your position, especially if the neighbour begins claiming adverse possession. Avoid self-help remedies like cutting down a shared tree or demolishing part of a fence without a court order; doing so may expose you to liability under provincial Trespass to Property Acts (e.g., Ontario’s *Trespass to Property Act*, R.S.O. 1990, c. T.21). Consider mediation: Many provinces fund free or low-cost services—such as the Ontario Land Tribunal’s Mediation Services or BC’s Community Dispute Resolution Centres—which often resolve disputes faster than litigation. Finally, review your title insurance policy: Some policies (e.g., Stewart Title or First Canadian Title) cover legal expenses related to boundary disputes arising from title defects disclosed at purchase—though coverage excludes known encroachments at closing.

Common Encroachment Scenarios & Outcomes

Not all encroachments are treated equally—courts consider intent, impact, duration, and proportionality when ordering remedies.

Minor encroachments (e.g., a 15-cm section of eavestrough or fence post) rarely result in mandatory removal. In *Koebel v. Hockley Valley Developments* (2023 ONSC 4112), the court ordered compensation ($1,200) instead of demolition, citing minimal impact and $22,000 removal costs. Major encroachments—like a full garage built across the line—almost always trigger removal orders unless the encroacher proves adverse possession or obtains a court-approved boundary adjustment. In Quebec, courts routinely apply art. 978 C.c.Q. to require removal *unless* the encroachment results from an honest error and removal would cause 'serious prejudice'—in which case compensation is awarded. Another frequent issue involves trees: Under Ontario’s *Forestry Act*, R.S.O. 1990, c. F.26, s. 10, you may trim overhanging branches up to the property line—but cannot enter the neighbour’s land or harm the tree’s health without consent or court approval.

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