Friday, April 20, 2007
Encroachments
A recent appellate decision underscores the importance of taking care of land encroachments immediately as soon as they are discovered, before things get really out of hand.
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'Never impose onto others what you would not choose for yourself' [Confucius in ‘The Analects' (XV.24)].
In its simplest form, a real estate encroachment is real property that extends onto adjacent land owned by someone else. For example, if someone builds a shed at the edge of their property without knowing the actual property boundaries, the shed may extend onto land that they do not own.The building of a structure entirely or partly on a neighbour's property constitutes an encroachment.
Encroachments may occur due to faulty surveying or sheer obstreperousness on the part of the builder, or both. Having a professional survey performed before building near the property boundary is a good idea if no survey records are available, so that any possible encroachment issues can be avoided.
If one is found guilty of encroachment, the neighbor typically has legal grounds to sue and force removal of the building or compensation for what he/she has lost in reduced property space and value. The optimal solution is never to get involved with properties that have encroachment problems. Sorting out the legal mess that encroachments onto someone else's land can cause is invariably expensive and time consuming, as the following court case, which ultimately landed right in front of The Court of Appeals of British Columbia, can confirm.
The Plaintiff, a single woman, and the Defendants, husband and wife, live next door to each other in Mission, B.C. The Defendants purchased their 5.5-acre property in 1996. The Plaintiff bought her 4.4-acre property in 1999. Each bought their property under the impression that the Defendants' driveway formed the Southeast boundary of Defendants' property and the Northeast boundary of Plaintiff's property. The previous owners of Plaintiff's property had maintained the land between their house and the Defendants' driveway (the "Northeast segment"), and the Plaintiff continued to maintain the Northeast segment after she moved in, including creating a garden there.
As a result of an informal survey done by one of the Defendants - the wife to be specific - in 1997, about a year after moving onto the property, she concluded that some of the outbuildings on the Northeast segment were actually on the Defendants' land. She said nothing about this to her husband, even when the previous owners sold their property to the Plaintiff. In fact the husband believed the driveway marked the boundary between his property and the Northeast segment until he received an official survey in February 2000.
In the Fall of 1999, the Defendants began to build a road branching off from the driveway to the rear of their property. They needed the road for access to some buildings they were constructing for their businesses. As a result of the road construction, both parties commissioned surveys early in 2000.The surveys revealed that some of Plaintiffs' structures in the Northeast segment (part of her garden shed; part of a storage building she uses for wood storage and to house a generator; part of a fenced run attached to the storage building; a satellite dish on a post; and an underground propane supply line) encroached on the Defendants' land. The surveys also revealed that there had been a trespass by the Defendants' contractor onto the Northwest part of Plaintiff's land that resulted in trees and bushes being destroyed (the "disturbed area").
Relations between the parties grew acrimonious after Plaintiff's counsel contacted Defendants to discuss compensation for the disturbed area. Defendants became very angry and told Plaintiff to move her buildings off their land. They also told her they intended to build a chemical storage facility on the Northeast segment. In the Spring of 2001, Plaintiff planted two shrubs on the Northeast segment, and Defendants phoned her threatening to build a parking lot on the segment. Also in the Spring of 2001, Plaintiff visited the disturbed area and found that Defendants' new road had been widened. She commissioned a new survey, which revealed that the road and roadbed actually encroached on her land to an extent of 241 square meters (about 2,500 square feet).
Relations between the parties continued to deteriorate. Defendants informed Plaintiff that they would be bringing heavy equipment onto the Northeast segment, cutting down all the trees, adding fill to the area, doubling the size of their dog kennels, and placing a chemical storage facility within feet of her home.
Plaintiff's lawyer filed a Statement Of Claim and applied for an injunction. She sought either an easement or vesting of the Northeast segment under s. 36 of the Property Law Act of British Columbia, general, special, aggravated and punitive damages and damages for diminution of the value of her property, the value of the lumber removed from her property, and the cost of restoring the disturbed area.
In their Statement Of Defense the Defendants admitted to a "minor trespass" on Plaintiff's property. They counterclaimed seeking an order that required Plaintiff to remove all encroachments from their land (that is, from the Northeast segment) and damages for trespass.
The Trial Judge found that the requirements of s. 36 were met by the Plaintiff. The Trial Judge held that Plaintiff undoubtedly had an honest belief that her property included the Northeast segment, that the buildings were of a permanent nature and could not be easily or inexpensively moved and, in the absence of any evidence about the value of the Northeast segment or any diminution in value of either property depending on the outcome of the litigation, that the Northeast segment was of more value to the Plaintiff and any subsequent owner of her property than to the Defendants.
The Trial Judge further noted that Plaintiff's house was close to the property line and that the Northeast segment provided a buffer and privacy from commercial traffic on Defendant's driveway. Her use of the land for her garden and outbuildings did not inconvenience the Defendants or precluded them from widening their driveway. In the result, the Trial Judge concluded that the balance of convenience was substantially in Plaintiff's favor and, moreover, that an easement would not address all of the equities and the need for finality in the dispute. She ordered that title to the 241 square meters in the Northeast segment vest in Plaintiff. The Judge further noted Defendant's wife failure to alert either the previous owners of Plaintiff's property, or her own husband or the Plaintiff to her discovery that the outbuildings encroached on the Defendant's land, and determined that this fact was instrumental in vesting the Northeast segment to Plaintiff.
As to the matter of compensation, the Trial Judge also made orders that Plaintiff pay to the Defendants the difference in value between the 241 square meters in the Northeast segment and the area encroached on by the road, that both parties pay damages for trespass, and that the Defendants pay Plaintiff punitive and exemplary damages.
This decision has now been upheld in Appeal.
Luigi Frascati
Real Estate Chronicle
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