Victor Hussein talks about fences and property lines
QUESTION: My neighbours fence is about one foot into my property line. Can you provide any guidance with respect to any legal complications this could raise if I decide to sell my property? Can this problem be legally remedied without actually moving the fence?
ANSWER: The first issue to deal with is to ascertain that your neighbour is truly encroaching upon your property. In other words, determine your true boundary line. It may be the registered title incorrectly describes the boundary line and your neighbour may not be encroaching upon your property. I would suggest obtaining the assistance of a surveyor to ensure that your neighbour is indeed infringing upon your property.
Having said that, I will assume the fence is beyond the boundary line and on your property. How does this effect the sale of your property? The future purchasers will expect to obtain the entire property as per the legal description. If upon a careful review of the survey the purchasers discover the discrepancy in the location of the fence and the boundary line, they may react in any number of ways, including the following:
1) The purchasers may simply decide the infringement is not that severe and will close the transaction without further objection to the discrepancy;
2) The purchasers may ask for an abatement in the purchase price to reflect the fact they are getting less than what they bargained for. The exact amount of abatement sought will depend upon the parties and could involve an appraiser if a consensus cannot be reached by the parties; or,
3) The purchasers may attempt to terminate the Agreement of Purchase and Sale on the grounds they are getting less than what they bargained for. The merits in taking such a position will depend upon the courts view of the severity of the deficiency. If the court finds the deficiency to be minimal, the purchasers will have to complete the transaction. If however, the court determines the deficiency to be substantial, or, that the discrepancy has a major impact on the purchaser’s declared use for the property, the purchasers will be permitted to terminate the transaction.
The second issue that you raise is can this problem be legally remedied without actually moving the fence? The answer is yes, but is dependant upon your neighbour’s willingness to acknowledge the discrepancy. The solution is to execute with your neighbour a properly drafted Encroachment Agreement acknowledging amongst other matters:
* the fact that the neighbour is encroaching upon your lands;
* the neighbour (and any successors) will remove the fence if the need ever arises;
* the neighbour will register the Encroachment Agreement upon her title to ensure subsequent purchasers of her property will be aware of the existence of the
Encroachment Agreement and will take title subject to the terms of the Encroachment Agreement.
Do not attempt to prepare the Encroachment Agreement on your own. Definitely retain the services of a professional to assist you in this regard.
Finally, a note to purchasers presently in the market. The above situation can be avoided by taking a little extra precaution when buying a resale home. A problem that frequently arises when purchasing a resale home is the survey used in the transaction is dated and therefore does not depict any structures, such a fence, that may have been erected subsequent to the date of the survey. Without an up-to-date survey, no one really knows if the fence is on the boundary line or is infringing on yourproperty. The solution is to either have a surveyor attend and verify the boundary lines, or, have an up-to-date survey prepared. A little bit of caution early on can save some aggravation in the future. Best of Luck!
Victor Hussein talks about:
Victor Hussein is a Kitchener Waterloo lawyer, specializing in real estate.
