Written by Paul de Bruyn– Associate Lawyer
John bought a “boat in and boat out” cabin on a lake in Osoyoos in 2001. He did not obtain a survey of the land at the time and there was no mention by his neighbour about any encroachment onto his neighbour’s land. The cabin was built in 1965 and John has been using the cabin for summer vacations. It is a fully furnished two bedroom cabin, with two bathrooms and a lounge and kitchen. The cabin encroached 2.10 meters onto Dave’s land. The portion that encroaches on Dave’s land is the main bedroom of the cabin. John did not learn about the encroachment until 2021 when Dave did a survey, a few months after Dave bought his property. No easement is registered on Dave’s title in favor of John’s cabin. Dave now wants John to demolish the section of the cabin that encroaches on his land.
What are John’s remedies?
Section 36 of the Property Law Act [PLA] states as follows:
Encroachment on adjoining land
(1) For the purposes of this section, “owner” includes a person with an interest in, or right to possession of land.
(2) If, on the survey of land, it is found that a building on it encroaches on adjoining land, or a fence has been improperly located so as to enclose adjoining land, the Supreme Court may on application:
(a) declare that the owner of the land has for the period the court determines and on making the compensation to the owner of the adjoining land that the court determines, an easement on the land encroached on or enclosed,
(b) vest title to the land encroached on or enclosed in the owner of the land encroaching or enclosing, on making the compensation that the court determines, or
(c) order the owner to remove the encroachment or the fence so that it no longer encroaches on or encloses any part of the adjoining land.
The purpose of s. 36 of the PLA is to provide a basis on equitable grounds for resolving disputes over encroachments.
It requires an assessment of the balance of convenience, having regard to three predominant considerations:
a) The comprehension of the property lines. Were the parties cognizant of the correct property line before the encroachment became an issue? There are three degrees of knowledge: honest belief, negligence, or fraud. The party seeking the easement should have an honest belief to be awarded this remedy.
b) The nature of the encroachment. Was the encroachment a lasting improvement? What is the effort and cost involved in moving the improvement? What is the effect on the properties in question? The more fixed the improvement and the more costly and cumbersome it would be to move it, the more these considerations will be weighed in favour of the land that encroaches.
c) The size of the encroachment. How does the encroachment affect the properties in terms of both their present and future value and costs?
John will have to establish that he had an honest belief that there were no encroachments during his ownership of the cabin. Dave probably knew that John’s cabin encroaches onto his land hence the survey he had done. Dave could have done a survey before he bought his property or he could have insisted on a property disclosure statement which may have pointed out the encroachment.
The encroachment of the cabin is permanent and long standing improvements and demolishing the main bedroom may necessitate structural alteration to the roof. If so, this factor rules in favor of John getting an easement for the encroachment, but the costs of alteration of the cabin will be factored in too.
Another important factor is whether the encroachment affects Dave’s use of the property and to what extent.
John can seek an order for the vesting of land encroached under s. 36(2)(b) of the PLA. The loss is to the value of the land encroached.
John can also seek only an easement under s. 36(2)(a). The loss is the loss of the use of the encroached land, which is the value of the easement.
To conclude, section 36 of the PLA provides for an equitable remedy, and the test is not intended to be applied rigorously. Instead, the facts and the equities of each individual case ought to determine the court’s exercise of its discretion rather than the application of a one size fits all test.
In Part 2 we’ll discuss the compensation payable for the easement, so watch this space.