Sometimes neighbours make incorrect assumptions as to the location of property lines dividing their lots. Fences and hedges are built and the assumption carries on to successors in title. All is well until the error is discovered and then long-forgotten property rights become important. The solution lies in Section 32 of the Property Law Act which permits the courts to grant easements, transfers and other remedies which will be fair to the parties.

The recent case of Vineberg v. Rarek is an example. Vineberg and Rarek owned adjoining lots and understood the boundary between their lots to be delineated by a privet hedge, trees and an old fence. Vineberg constructed a retaining wall and elevated the level of his land. Rarek said nothing. Then Rarek built a new fence to connect with the old one and discovered the true location of the property line in the process. It was one and a half metres closer to Vineberg's house than they had assumed and in fact, Vineberg's house encroached on Rarek's land by almost half a metre. Relations deteriorated and Rarek removed the hedge, trees and fence. He constructed a new fence which prevented Vineberg from accessing his backyard on that side. Vineberg applied to the court for an easement. The court determined that on the merits, the balance of convenience favoured the granting of the easement. Both parties had made an honest mistake and were unaware of the true location of the property line for many years. Vineberg had built the retaining wall with Rarek's knowledge and Rarek had not objected. The land was at a higher level and of no use to Rarek. Granting the easement would not deprive Rarek of an inordinate amount of his property and he would still have plenty of room for expansion. The easement was granted and Rarek was awarded reasonable compensation of $3,200.00.

The case of Tai Wo Enterprises v. 338822 B.C. Ltd. presented a more difficult problem. In this case, Tai Wo owned a lot between two lots owned by 338822 B.C. Ltd. The buildings on either side encroached on Tai Wo's lot. Tai Wo wanted to demolish its building and build a new one. The demolition would result in a loss of support to the adjoining buildings. Tai Wo applied to the court for an order that 338822 B.C. Ltd. remove its encroachments and build new support walls. 338822 B.C. Ltd. applied for an order that Tai Wo convey to it a strip of land on one side in return for a conveyance to Tai Wo of a similar strip on the other side.

The court opted for the conveyance approach because the balance of convenience was in favour of 338822 B.C. Ltd. Tai Wo would end up with the same size lot it already had and no encroachment would continue. The encroaching buildings could continue to stand. The cost of conveyance and all added permit costs was to be paid by 338822 B.C. Ltd.

When true property lines are discovered, remember that fairness and the balance of convenience will prevail under the Property Law Act.

Please call or e-mail me with questions or comments you might have.