Do good fences make good neighbours?

August 2017

Though the popular proverb about good fences making good neighbours may hold true despite its contradictory nature, it is the fence itself that often leads to irreconcilable neighbour disputes.

There are many reasons why fences between neighbouring properties are considered good.  They can be a safeguard to pools, keep the dog in the yard, create privacy, and delineate property boundaries.  But what happens when a fence has mistakenly been built between neighbouring properties that does not respect the surveyed property lines?  Such a situation is the subject of many legal consultations and much litigation where, unfortunately, the cost of the fight quickly exceeds the cost of the fence.

The question at the root of a property boundary dispute of this nature is usually: Does the property owner who has seemingly gained more land as a result of the erroneous fence placement acquire ownership of the land that does not lie on his or her side of the deeded boundary?

The short answer to that question is no. Most commonly referred to as “squatter’s rights”, the legal term for this situation is “adverse possession” or “possessory interest”.  At most, the property owner may be able to acquire a “possessory interest” in the additional land.  What is the difference you might ask?  The difference is that the property owner claiming land beyond their deeded boundary cannot become the legal owner of that additional land, and cannot convey that additional land by deed to a subsequent owner.   The most that such owner acquires and can pass on to a subsequent owner is a possessory interest, and the legal right to exclude the true owner from the additional land.

The legal test for adverse possession should be considered by feuding neighbours before resorting to costly litigation. This test includes that the landowner claiming an interest in the land that is not on his or her side of the deeded property boundary must prove that, for a period of at least ten consecutive years, the claimant was in actual open possession of the lands with the intention to exclude and the actual exclusion of all others from its use, including the true owner.

There is, however, a caveat to the ten-year rule, in that the entire ten consecutive years of open and exclusive use must have occurred before the property in question was converted from Ontario’s Land Registry System over to the Land Titles System. The date of the conversion from one registration system to the other varies from property to property and can be found on the property parcel register that is maintained by the Province for all properties in Ontario.

If the fence was built after the property was converted to the Land Titles System, then no possessory rights can be acquired via adverse possession and a court would order that the encroaching fence must be relocated to comply with the deeded property boundary.

In the case of a fence which has been in place for not less than ten years before the properties were converted from the Registry System to the Land Titles System, the owner claiming to have acquired a possessory interest in any property via adverse possession must prove that he or she (or previous owners of the property) had continuous open use to the exclusion of others for not less than ten consecutive years before the property was converted to the Land Titles System.

In all cases, where an owner is considering a claim for adverse possession or a possessory interest, they should gather all of the information they have about the history of their property and the neighbouring property and consult with a lawyer.

Author

Gene practises in the area of commercial litigation pertaining to contracts and employment. Gene also practises in the areas of human rights and education law as well as in the energy sector. He appears regularly on matters before the Superior Court of Justice, the Ontario Court of Justice, the Divisional Court, the Human Rights Tribunal of Ontario and various other tribunals across the province. More →