Vancouver, a city celebrated for its natural splendour and vibrant communities, can also be a stage for property disputes, particularly those arising from misplaced fences. A fence, intended to define property lines, can become a significant source of contention when its placement deviates from the legally established boundary.
The Critical Role of Accurate Property Lines
Before examining the specifics of misplaced fences, it’s essential to understand the fundamental significance of accurate property lines. These legally defined boundaries, often marked by survey pins, delineate the precise limits of ownership.
In British Columbia, the Land Title Act governs the registration and definition of these crucial lines. A professional survey conducted by a British Columbia Land Surveyor serves as the definitive authority on property boundaries. Relying on outdated surveys, visual estimations, or mere assumptions can cause significant problems, particularly when constructing fences. Accurate property lines are essential not only for fence placement but also for various other property-related activities, including construction, landscaping, and resolving disputes. They provide a clear and unambiguous definition of ownership, preventing future misunderstandings and conflicts.
What Constitutes a Misplaced Fence in British Columbia?
A fence is considered “misplaced” when it does not conform to the legally established property line. This deviation can occur in several ways, each with its own implications:
Encroachment onto Adjoining Land
This is the most common scenario, where the fence extends beyond the property line and onto the neighbouring property. Even seemingly insignificant encroachments can spark significant disputes and lead to legal action. The encroaching fence effectively reduces the usable area of the adjoining property and can interfere with the owner’s enjoyment of their land.
Fence Constructed Within the Property Boundary
Less frequent but equally problematic is a fence built entirely within one’s property but not along the actual boundary. This creates a strip of land between the fence and the exact property line, potentially leading to confusion, disputes over ownership, and difficulties in future development. This “gap” can become a source of contention, with questions arising about who has the right to use and maintain it.
Imprecise Straddling of the Property Line
Fences are sometimes intended to sit directly on the property line, with the fence posts on one side and the fencing material on the other. If this straddling is not executed precisely, it can still constitute a misplaced fence, leading to disputes about who owns and is responsible for maintaining which portion of the fence. This can be particularly problematic when repairs or replacements are needed.
The Legal Landscape of Misplaced Fences: Trespass, Adverse Possession, and Encroachment Agreements
The legal repercussions of a misplaced fence are complex and depend on several factors, including the length of time the encroachment has existed, the extent of the deviation, and the specific circumstances of the situation.
Trespass
When a fence encroaches onto a neighbouring property, it constitutes a trespass. Trespass is a legal wrong that occurs when someone (or their structure) intentionally or unintentionally enters or interferes with the property of another without legal justification. The affected property owner can pursue various remedies for trespass, including damages to compensate for any losses or inconvenience and a court order mandating the removal or relocation of the fence.
Adverse Possession
The concept of adverse possession sometimes arises in property line disputes. It involves a claim to ownership of land based on prolonged occupation, even without original title. The Limitation Act of British Columbia governs the requirements for establishing adverse possession. These legal requirements are substantial, including demonstrating continuous, open, and exclusive possession for a specific duration.
While adverse possession might be a consideration in some disputes, it is essential to understand that simply the presence of a misplaced fence for an extended period does not automatically confer ownership. Successfully establishing a claim of adverse possession in British Columbia, particularly for land registered within the Land Title system, requires meeting a high legal threshold.
Encroachment Agreements
Neighbours might enter into a formal agreement permitting a fence to remain in its misplaced location. These agreements, known as encroachment agreements, must be in writing and registered on the land titles to be legally binding and enforceable against future owners of the properties. Without a registered agreement, the continued presence of the encroaching fence can lead to future disputes, especially when properties change hands. The agreement should clearly outline the terms of the encroachment, including the duration, any compensation, and responsibility for maintenance.
Boundary Line Agreements
If uncertainty exists regarding the true location of the property line, neighbouring owners can execute a boundary line agreement. Based on a survey, this agreement establishes the boundary and should be registered on the land title. It can preempt future disputes concerning fence placement and provide clarity for all parties involved. A boundary line agreement provides legal certainty and avoids costly litigation.
Legal Options for Fence Disputes in Vancouver
Property owners affected by a misplaced fence have several potential legal avenues to explore.
Professional Survey
The first and most critical step is to commission a professional survey from a British Columbia Land Surveyor to establish the true property line definitively. This survey provides concrete evidence of the encroachment and is the foundation for any legal action. The survey should be detailed, and the property boundaries and the fence’s location should be clearly marked.
Notice to Remove or Relocate
The affected property owner can issue a formal notice to the neighbour demanding the removal or relocation of the fence. This notice should clearly articulate the basis of the claim, referencing the survey and relevant legal principles. It serves as a formal record of the complaint and can be crucial in subsequent legal proceedings. The notice should provide a reasonable timeframe for the neighbour to respond and take action.
Court Action
If the neighbour refuses to rectify the situation, the affected property owner can initiate legal proceedings. A court can issue various orders, including:’
- Removal—to direct the fence owner to remove the encroaching portion of the fence.
- Relocation—to mandate the fence owner to relocate the fence to the correct property line.
- Damages—to compensate the affected property owner for any losses, including the cost of the survey, legal fees, and any diminution in property value caused by the encroachment.
- Injunction—to prevent further construction or interference with the property boundary while the dispute is being resolved.
Contact Meridian Law Group in Vancouver for Trusted Representation in Fence & Property Disputes
At Meridian Law Group, our team of experienced real estate litigation lawyers represent clients in a variety of property-related disputes, including those arising from fence placements. We have extensive knowledge of B.C.’s property legislation and municipal regulations and vigorously advocate for our clients in conflicts relating to property lines.
Meridian Law Group has been a cornerstone of the Vancouver legal community for over three decades and proudly represents clients throughout the surrounding areas. To schedule a consultation, please contact us online or call 604-687-2277.
