Before Home Buying Check Survey for Boundaries

Bob Aaron in Home Buying, Legal

Taking the law into your own hands over a property line
dispute can be dangerous to your bank account, as one Toronto homeowner
discovered recently.

Sharon and Marino Zorz and Katherina Attard are neighbours on Baby Point Rd., near Jane and Annette Sts.

The
two houses were built about 80 years ago, and the old fence separating
them was not constructed on the property line, but 15 inches west of
the actual boundary.

The original deed to the Zorz house
included a right-of-way over that adjoining (or easterly) 15-inch strip
of the Attard property. For about 80 years, the fence between the
houses enclosed the strip of land making it appear that the Zorz land
was 15 inches wider than what was shown on the paper title.

In
2001, the properties were converted by the government into the Land
Titles system, which effectively froze any rights to adverse possession
or squatter's rights as they existed on the date of conversion, but it
did not end those rights.

In the fall of 2006, Attard renovated
her home and constructed an addition. During this process she removed
the old fence and replaced it with a new one on the property line –
east of where it had been for the previous 80 years.

As a
result, the Zorz family could no longer access their garage, and sued
Attard in November, 2006. Later that month they obtained a judge's
order requiring Attard to remove the fence. Sometime afterward, the
fence was removed and then reconstructed. In March, another court order
required the second new fence to be removed until the case was heard.

The case came before Justice Ellen Macdonald in Ontario Superior Court in June last year.

Macdonald
decided that the Zorz family had acquired adverse possession
(squatter's rights) to the 15-inch strip of land east of the original
fence line. The Zorzes and the previous owners of their home had
demonstrated continuous, uninterrupted, open and "notorious" use of the
disputed strip for many years, to the exclusion of Attard and the prior
owners of her property.

Those rights existed in 1990 when the
Zorzes bought the property. Even if they didn't acquire the rights at
that time, the rights came into existence by their own occupation of
the strip of land for more than 11 years from their purchase in 1990 to
the conversion to Land Titles in 2001.

Taking all the facts
into consideration, Macdonald awarded Sharon and Marino Zorz $7,500 in
damages "on account of trespass, nuisance and invasion of privacy."

As
well, she ordered the replacement of the fence at the same location as
the original fence removed by Attard. Costs of $7,500 were awarded to
the Zorzes in addition to the damages.

The case presents some valuable lessons for property owners who find themselves in a boundary line dispute.

Taking
the law into your own hands to settle a boundary dispute is risky.
Relocating a fence without agreement from the neighbouring owner or a
court order is never a good idea.

Always review an up-to-date land survey when buying a house, so that you will know where your boundaries are, and aren't.

Bob Aaron is a sole practitioner at the law firm of Aaron &
Aaron in Toronto.  Bob specializes in the areas of real estate,
corporate and commercial law, estates and wills and landlord/tenant
law. His
Title Page column appears Saturdays in The Toronto Star and weekly on Move Smartly.  E-mail bob@aaron.ca

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