If you are reading this article, odds are that you are already familiar with how time-consuming and frustrating a boundary issue with your neighbour can be. Perhaps your neighbour has started to build a fence or a shed on your yard without consulting with you. You may even have confronted them about it to no avail. Regardless of how the issue started, encroachments can be difficult to resolve not only because of the legal complexities of property ownership, but also because of the long-term emotional investment. This article outlines some of the basic steps of resolving an encroachment dispute when discussions between neighbours have hit a roadblock.
The first thing you will need is reliable evidence about the encroachment. Even though many homeowners may be under the impression that they know their property boundaries based on historical use or physical characteristics (such as a physical structure), legal boundaries must be determined by a licensed surveyor. A good survey will outline the boundaries of the property and locate the encroaching structures relative to those boundaries together with detailed information. When communication between neighbours has broken down, a survey may be an authoritative way to advance your position, especially when the surveyor marks the on-site boundaries using physical monuments. The cost of a survey can range substantially based on the characteristics of the property and the nature of the dispute. Normally, we would suggest that clients budget at a minimum $3,000.00 for a surveyor’s report. Depending on the surveyor, you may be able to get a survey within three to four weeks of the surveyor commencing their work.
After confirming the neighbour has encroached on your property, it is imperative that you determine whether the encroachment is in fact illegal. A real estate lawyer can assist you in conducting an up-to-date title search of your property and the neighbour’s property, for the purpose of ensuring that the neighbour does not have a legal right to encroach, such as is common in registered easements or encroachment agreements. Importantly, a lawyer will also be able to flag any risk of losing property rights as a result of the encroachment (e.g. “squatter’s rights”).
Weigh the Options
Having determined the extent of the problem, you can now begin to weigh your options. Encroachments rarely have a one-size-fits-all solution, so a frank discussion with a lawyer will help you achieve your desired outcome based on your budget. When available, negotiation with your neighbour is frequently the cheapest and most flexible option since the involved parties can generate creative arrangements that preserve the relationship and minimize cost. Your lawyer will assist you in advancing a stale negotiation and also drafting the final agreement. When all other options have been exhausted, your lawyer can also guide you through the process of escalating the matter to litigation.
The Cost of Ignoring an Encroachment
Ignoring a neighbour’s encroachment can have unexpected and expensive consequences. Notably, failing to address an encroachment can potentially hinder a sale or refinance. Even more troubling, long-standing encroachments may even change your rights relative to your neighbour. As with most legal matters, an ounce of prevention is worth a pound of cure. At Hummingbird Lawyers LLP, our trusted team of lawyers has vast experience and success with providing legal advice and direction when it comes to resolving encroachment disputes. For more information, please contact Hummingbird Lawyers LLP. Our real estate team is always available to help.