- An easement is a right to use another’s land for a defined purpose. It runs with the land.
- Ontario’s land titles system has largely eliminated new prescriptive easements, though historic ones can survive.
- An encroachment is a physical intrusion, and it does not transfer ownership by itself.
- A current survey is usually the decisive piece of evidence.
Easements
An easement is a right for the owner of one parcel to use another parcel for a specific purpose, a shared driveway, a right of way, a utility corridor, a drainage right.
It attaches to the land rather than the person, so it binds subsequent owners and benefits subsequent owners of the parcel it serves. Buying a property with a registered easement means buying it subject to that easement.
Most easements are created expressly, by a registered document. They can also arise by implication or by statute in certain circumstances.
Easements by long use
Historically, long uninterrupted use could create a prescriptive easement without any document.
The land titles system has largely closed this route: prescriptive rights generally cannot be acquired against land registered under land titles. Since most Ontario land is now in that system, new prescriptive easements are largely unavailable.
The qualification matters, though. Rights that had already crystallised before the land was brought into land titles can survive. Older shared driveways in established neighbourhoods are the classic example, and they require a historical analysis rather than an assumption in either direction.
Encroachments
An encroachment is a physical intrusion across a boundary, a fence, a garage eave, a retaining wall, a shed, a driveway.
The critical point is that building over a line does not transfer ownership. The owner of the land encroached upon retains title, and can generally require removal, though a court has discretion in fashioning a remedy and will consider the cost and proportionality of removal.
Practical resolutions include an agreement permitting the encroachment for a period or until replacement, a registered easement, a small conveyance of the affected strip, or removal.
Where a party has knowingly built over a line, courts are less sympathetic than where the encroachment was innocent and longstanding.
Boundaries
Fences are not boundaries. They are frequently in the wrong place, sometimes by a significant margin, and their position proves nothing about title.
The boundary is what the registered description and the survey establish. A current survey by an Ontario Land Surveyor is the evidence that resolves most disputes, and obtaining one early is usually cheaper than arguing without one.
Where a survey reveals a problem, the options run from a negotiated agreement to an application to the court. Litigation between neighbours over a narrow strip of land is rarely economic, and the costs commonly exceed the value of the land in dispute.
Trees and fences
Two recurring sources of friction have their own rules.
A tree whose trunk stands on the boundary is generally the common property of both owners, and neither may remove or injure it without the other’s consent. This surprises owners who assume they may cut anything overhanging their side.
Boundary fences between adjoining owners are addressed by legislation providing a process for apportioning the cost of construction and maintenance, including a mechanism for resolving disagreement.
Before it escalates
Most of these disputes are resolvable and most become expensive because of how they are handled rather than what they are about.
The sequence that works: obtain a survey, check the registered title for any relevant easement or covenant, put the position in writing without heat, and propose a practical resolution. Reserve litigation for cases where a genuine and valuable right is at stake and the other side will not engage.
Common questions
My neighbour has used my driveway for years. Do they now have a right?
Probably not if the land is under land titles, since prescriptive rights generally cannot be acquired against it. Historic rights that crystallised earlier may survive and require investigation.
Can I remove a fence that is on my land?
Possibly, but self-help escalates matters and can create liability. Establishing the boundary by survey first is the safer sequence.
Who pays for a shared fence?
Legislation provides for apportioning construction and maintenance between adjoining owners, with a process for resolving disagreement.
Does title insurance cover an encroachment?
Some policies cover certain survey and boundary matters. Coverage depends on the policy and on whether the issue was known before closing.
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