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In This Volume

  • 36 (1) For the purposes of this section, “owner” includes a person with an interest in, or right to possession of land.
  • (2) If, on the survey of land, it is found that a building on it encroaches on adjoining land, or a fence has been improperly located so as to enclose adjoining land, the Supreme Court may on application
  • (a) declare that the owner of the land has for the period the court determines and on making the compensation to the owner of the adjoining land that the court determines, an easement on the land encroached on or enclosed,
  • (b) vest title to the land encroached on or enclosed in the owner of the land encroaching or enclosing, on making the compensation that the court determines, or
  • (c) order the owner to remove the encroachment or the fence so that it no longer encroaches on or encloses any part of the adjoining land.

1979-340-32.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

See Di Castri, Registration of Title to Land, vol. 1, para. 126, and vol. 3, para. 859.

CASE LAW

Because decisions involving s. 36 tend to turn primarily on their facts, the organization of the majority of the following case annotations is based on common factual circumstances (“Improperly Located Fences” or “Encroaching Buildings and Other Improvements”). The annotations are also divided in accordance with the success of parties in obtaining a vesting order or easement in order to better demonstrate the occasions in which the courts are prepared to grant such a remedy. Annotations regarding a variety of other issues addressed by the courts and general commentary on the case law are also included.

Overview

Notes on Case Law: The purpose of s. 36 is the provision of an equitable basis for resolving disputes over encroachments (see, for example, Svenson v. Hokhold, 1993 CanLII 445 (BC CA), cited below) and the court frequently emphasizes that it is seeking an equitable balance between the interests of both parties. The “balance of convenience” has been established as the test to be applied to the given circumstances, and the common elements of that test as defined by the case law may be summarized as follow in accordance with Vineberg v. Rerick, 1995 CanLII 3363 (BC SC):

  1. The knowledge of the location of property lines: Did the parties know the correct boundary line before the encroachment became an issue? There are three degrees of knowledge: honest belief, negligence, or fraud. The party seeking the easement should have an honest belief to be awarded this remedy.
  2. The nature of the encroachment: Was the encroachment a lasting improvement? What is the effort and cost involved in moving the improvement? What is its effect on the properties in question? The more fixed the improvement, and the more costly and cumbersome it would be to move it, the more these considerations will be weighed in favour of the petitioner [owner of the encroaching improvement].
  3. The size of the encroachment: How does the encroachment effect the properties, in terms of both their present and future value and use? These questions serve to balance the potential losses and gains of the creation of an easement.

General Application

Scope

The plaintiff purchased a lot containing a recreational vehicle (RV) park from the defendant and subsequently discovered upon surveying the lot that 10 of the park’s RV pads encroached on the defendant’s neighbouring lot. The plaintiff applied for relief under s. 36, but the section was inapplicable in the circumstances. The RV pads, consisting of cleared and gravelled pads serviced by sewer, water, power, and telephone, and upon which RVs parked, did not constitute “buildings” within the meaning of s. 36(2); rather, the pads were merely improvements. Furthermore, there was no improperly located fence to bring the circumstances within the scope of the section (I.C.R.V. Holdings Ltd. v. Tri-Par Holdings Ltd., 1996 CanLII 8576 (BC SC)).

Application to Municipal Land

L purchased residential property that encroached on an undeveloped road allowance located within the boundaries of the municipality. The municipality sought an injunction ordering L to remove the unauthorized encumbrances. In deciding the appeals and cross-appeals from the trial court’s decision, the Court of Appeal held that s. 36 of the Property Law Act is not, on its face, limited to encroachments involving two private property owners. The court found no reason to read in limiting language to the provision that is not there, and hence it affirmed that s. 36 also applies to public land. However, the court stated it must be very cautious in making an order that eliminated both a public consultation process and discretionary decisions made by elected municipal representatives about the future of public land. In granting the injunction, the court ordered that the municipality file an affidavit with the court registry stating that it had complied with the court’s conditions, namely, that the municipality had passed a bylaw closing the road allowance and that it had offered to sell the encroached-upon land to L at fair market value. The court also ordered that, if the parties could not agree on the fair market value, the issue was to be remitted to the court for determination. Finally, the court ordered that the municipality was not entitled to enforce its injunction until 90 days after the conclusion of all proceedings to determine the fair market value of the encroached-upon land and L’s failure to acquire the land within that time (District of West Vancouver (Corporation of) v. Liu, 2016 BCCA 96).

Jurisdiction of Court

See Tai Wo Enterprises Ltd. v. 338822 B.C. Ltd., 1996 CanLII 2095 (BC SC), annotated below under “Encroaching Buildings and Other Improvements”, regarding the court’s limited jurisdiction to fashion a remedy under s. 36.

The court has no jurisdiction to grant an easement under s. 36(2) of the Act if an encroachment is neither a building nor a fence. In this case, an encroaching septic field was not a “building” because it was not an integral part of the plaintiffs’ house. The septic field was not built in conjunction with the house, the house could be used without the septic field in its present location, and a new septic field could be constructed and located entirely on the plaintiffs’ land. Likewise, a retaining wall jutting into the neighbour’s lot was not a “fence” because it did not separate contiguous estates or enclose part of the plaintiffs’ lot. The court ordered the plaintiffs to comply with the health requirements of the local government by relocating the septic field and retaining wall built in conjunction with it (Banville v. White, 2001 BCSC 628, reversed 2002 BCCA 239, and referred back to trial court 2003 BCSC 606; see the annotation for this decision under s. 35 of this Act).

Survey Requirements

Where the boundaries of a parcel are properly described in an official map or survey, the location of the boundaries on the land surface can be accomplished by the application of modern survey techniques to transfer the boundaries from the official map to the surface of the ground. It is a condition of the exercise of the discretion vested in the court by s. 36 of the Property Law Act that the court be presented with a survey. A ground survey will accurately fix the extent of encroachments and provide precise land descriptions for easement or vesting order purposes. Until a survey is presented, the trial judge has no jurisdiction to make an order under s. 36 of the Property Law Act (Hawkes Estate v. Silver Campsites Ltd., 1991 CanLII 5718 (BC CA)).

Compensation

It is not appropriate for a chambers judge to refer the issue of compensation to the registrar. That is not an appropriate method of dealing with compensation because there are many matters dealing with the valuation of land that require a determination by a judge and not a registrar (No. 6 Road Properties Ltd. v. Anderson Investments Ltd., [1985] B.C.J. No. 2247 (QL) (C.A.)).

One phase of a condominium development encroached upon another phase of a condominium development. The chambers judge set compensation under s. 36(2)(b) at $9,900 instead of at a higher per square metre valuation. Nominal compensation was justified because the condominium corporation would eventually own the entire development (A.L.M. Investments Ltd. v. Strata Plan NW 2320 (1989), 4 R.P.R. (2d) 275 (B.C.S.C.)).

Compensation under s. 36 is not treated as equal to compensation in expropriation cases. The amount ordered will not be disturbed by a reviewing court where the sum has an evidentiary basis (Svenson v. Hokhold, 1993 CanLII 445 (BC CA)).

The petitioner brought an application against the owners of a neighbouring building for compensation for an encroachment. The purpose of s. 36 of the Act is to provide an equitable basis for resolving disputes over encroachments. What is to be weighed is the balance of convenience. Compensation for an encroachment is not to be treated as equal to compensation for expropriation or as an action for damages. In this case, the balance of convenience favoured the respondents, who were not aware of the encroachment at the time their building was constructed and who only learned of the encroachment when a subsequent survey was done. In fixing a reasonable indemnity, the court considered the value of the land encroached, its use, and any negative effect or depreciation of the remaining land of the encroached land owner. The court found that the value of the encroachment was minimal. Further, the encroachment would not likely affect the rental or sale value of the petitioner’s property, and it would appear to have little if any functional use to the respondents. The court ordered minimal compensation of $1,000 and granted the respondent an easement to the end of the reasonable economic life of the respondents’ building (Lalli v. Eng, 2000 BCSC 686).

The petitioners purchased a property separated from a neighbouring lot by a row of trees, a path, and a line of large boulders. At the time of the purchase, the petitioners thought the trees represented the boundary and that the pathway and the boulders were on their property. The owner of the neighbouring lot informed the petitioners that both the trees and the path were located on the neighbouring lot. Without obtaining a survey to confirm the precise location of the lot line, the petitioners constructed a patio and enhanced the landscaping adjacent to their house and up to the boulder line. The resulting improvements encroached on the neighbouring lot by as much as 1.96 metres. In this action, the petitioners sought an order vesting title to or granting an easement over the encroached land. The neighbours replied with an application for removal of the encroachment. In considering the balance of convenience between the parties, the court found that the petitioners avoided the obvious means of establishing the boundary in circumstances where they knew their neighbours would not be accommodating if the petitioners were wrong. As such, the petitioners were not inadvertently misled by the apparent boundary line created by the boulders. However, the court also found that the encroached land was not accessible or usable by the neighbours, that the encroached land was well behind and away from the neighbours’ house and that, prior to the construction of the petitioners’ patio, the neighbours took no steps to confirm the boundary. In all of these circumstances, the court held that a proper amount of compensation together with costs served the purpose of an adequate rebuke of the petitioners’ inexcusable behaviour. The court set, as the amount of compensation, the appraised value attributable to the improvements (Langley v. Yang, 2012 BCSC 1520).

Fraud

The court ordered the vesting of title to an eight foot strip of land in an innocent purchaser whose fence, shed, and swimming pool encroached on the strip. The adjoining landowner had fraudulently acquired title from the Crown under the Escheat Act, having declared that he was in uninterrupted and continuous possession of the strip when he was not. The adjoining landowner was, however, entitled to compensation (Ferguson v. Lepine, 1982 CanLII 502 (BC CA)).

The defendant instructed a land surveyor to investigate the location of a proposed garage. On learning that it was highly likely that the garage would encroach on an adjacent lot, the defendant instructed the surveyor to go no further in preparing a formal survey plan. The survey documents were altered and submitted to the municipality for approval. A permit was issued and the garage was built. A subsequent purchaser of the adjoining lot discovered the encroachment and brought this application for an order directing the defendant to remove it. The court held that equitable relief under s. 36 is not available to a party who has attempted his own remedy through fraud. As a former building inspector, the defendant had knowledge of the property and undertook to conceal the mistake with fraudulent assurances the garage was properly sited. In such circumstances, the petitioners were entitled to an order requiring removal of the encroachment (Henderson v. Porter, 2001 BCSC 1601).

Improperly Located Fences

Easement or Vesting Order Granted

The petitioners owned Lot 2 and the respondents owned Lot 1. A survey of these adjacent lots contained an error, resulting in the easterly corner of the property being posted about 4.5 feet north of its actual position. This resulted in a triangular encroachment on Lot 1 along the boundary. The petitioners had built a fence, partly of rock and mortar and partly of wood and cedar siding. They estimated the removal cost was $42,000. The petitioners sought a vesting and compensation order under s. 36 of the Act. If the petitioners’ estimate of the cost of removal of the wall was accurate, the balance of convenience favoured them. The respondents’ property was not cultivated or improved in any way and the taking of the 4.5 feet of waterfront by the wall would not create any injurious affection on the remainder of Lot 1 because of lot size requirements and loss of the triangular piece. The court set compensation at $2,700. The respondents were not entitled to any additional amount for inconvenience or the continuing trespass (Mega Power Installations Ltd. v. Alexander, [1986] B.C.J. No. 1838 (QL) (S.C.)).

The petitioner constructed a retaining wall along a property line shared with the respondent. At the time of the construction, the petitioner retained the services of an architect and a contractor but not a surveyor. Subsequently, the respondent purchased his property and obtained a surveyor’s certificate indicating that the wall encroached on it. With respect to the encroached land and upon payment of compensation, the petitioner then sought an order vesting title or a declaration of easement. It was agreed that the retaining wall was not a building. The court had jurisdiction under s. 36(2) where a fence has been improperly located so as to enclose adjoining land. There was no reason to limit the definition of “fence” as that word is used in the Act to some upright, above ground structure that encloses an area of property. A structure of any kind, provided it serves the purpose of either enclosing property or separating contiguous estates, is a fence within the meaning of the Act. If a wall is a fence and has the effect of incorporating some of the respondent’s property with that of the petitioner, it can be said to surround the encroached area and thus to enclose the adjoining land. At the time of construction, the petitioner had an honest belief that the wall was erected along the property line. The wall was a lasting improvement and the costs of moving the wall would be considerably higher than the cost of compensating the respondent for the value of the property. In granting an easement in perpetuity rather than a vesting order, the court found that an easement would be more acceptable to the respondent without adversely affecting the rights of the petitioner (Barrow v. Landry, 1998 CanLII 6748 (BC SC), affirmed 1999 BCCA 143).

Easement or Vesting Order Denied

The petitioners sought an order to obtain title to land adjoining their property. Their predecessors in title had innocently encroached on this land by building a fence. The encroached area contained 27.9 square metres (approximately 315 square feet) and extended at the deepest point 17.6 feet into the respondents’ property. Removal of the encroached area from the respondents’ property would undoubtedly affect its value and militate against future subdivision. Cost of removing and replacing the improvements was $747. The balance of convenience clearly lay with the respondents. A court is not to exercise its discretion lightly. A claimant must show that the balance of convenience is decidedly in the claimant’s favour or that the equities are in the claimant’s favour within the framework of the statute (McNutt v. Tedder, 1982 CanLII 613 (BC SC)).

The applicants, who had purchased their property without the benefit of a survey, discovered that the previous owners of the property had improperly located a fence so that it enclosed adjoining land which was part of a municipal right of way. They applied under s. 36 for an easement over the improperly enclosed land upon payment of compensation to the city. The city opposed the application on the basis that the land encroached upon was intended to form part of an arterial roadway, the construction of which could be imminent in light of the present growth patterns in the city. Applying the balance of convenience test, the court could not order an easement in favour of the applicants. Although the consequences for the applicants were unfortunate, to order the easement would not only place the city in the position of not having an adequate easement to construct an arterial roadway, but the city would also very probably have to redesign and reroute the roadway and expropriate land on the other side of it.

While the potential expenses for the city were not before the court, it was clear as a matter of common sense that the difficulty that would be caused to the city would be out of all proportion to the benefit obtained by the applicants (Doan v. Cranbrook (City), 1994 CanLII 2065 (BC SC)).

Encroaching Buildings and Other Improvements

Easement or Vesting Order Granted

Barn. Upon surveying their property, the petitioners discovered that more than two-thirds of a barn built by the respondent neighbours’ predecessors in title encroached upon their property. The petitioners sought to landscape their yard and build a garden on the site of the encroachment. They applied for an order that the barn be removed. The court found that the equities were balanced in the circumstances, but the balance of convenience favoured the respondents, given the value of the building and the difficulty and expense in removing both it and the concrete pad upon which it was built. An easement was granted to the respondents for the life of the building upon payment of compensation (Dowes v. Tarr, 1996 CanLII 766 (BC SC)).

Workshop. When the petitioners purchased their property, they believed that the respondents’ workshop was located on the respondents’ property. Subsequently, the petitioners conducted a survey and discovered that the workshop actually encroached upon their property by approximately 12 feet. The court refused to make an order for the removal of the encroachment and instead granted an easement to the respondents. In addressing the balance of convenience under s. 36 of the Act, the court found that both the petitioners and the respondents had an honest belief that the workshop was within the boundaries of the respondents’ property before the encroachment became an issue, that the improvement was of a lasting nature, and that the petitioners were aware of the location of the workshop when they chose to build improvements on their own property at their present location (Rowse v. Halloran, 1997 CanLII 3132 (BC SC)).

Garden Building, Storage Shed, Fence, and Road. The plaintiff and the defendants were neighbours. The defendants decided to build a subsidiary access road which appeared to encroach on the plaintiff’s land. Both parties engaged land surveyors to determine the lot boundaries. As a result of the surveys, it was confirmed that, in addition to the defendants’ encroaching access road, the plaintiff had a number of encroachments on the defendants’ land including a garden building, a storage shed, and a fence enclosing a portion of the defendants’ land. The parties filed claims and counterclaims to resolve the encroachment issues. The court found that, from the time the parties purchased their respective lots, both parties shared an honest belief the plaintiff’s buildings and fence were located on the plaintiff’s land; that the buildings were of a permanent nature; and that, because the defendants did not think the encroached land was included in their property when they purchased it, it had no value to them in determining the price they paid for the property. Furthermore, neither party, in the course of these proceedings, obtained an appraisal or even an opinion about the relative value of the two properties with or without the encroached land. On this basis, the court determined that the land had more value to the petitioner than the defendants as it provided to the plaintiff a buffer between the plaintiff’s house and the defendants’ driveway and a degree of privacy. On the question of the access road, the court also found that it encroached on the plaintiff’s property. The court ordered each party to convey the encroached land to the other and to pay adjusted damages satisfying the claims and counterclaims (Taylor v. Hoskin, 2003 BCSC 1843). In dismissing the defendants’ appeal, the Court of Appeal found that the trial judge had jurisdiction to fashion an unusual remedy for unusual facts. Section 36 of the Act supports a broad and equitable approach. The trial judge carefully considered and weighed the equities between the parties in determining the balance of convenience. This approach was entirely proper, intended by the Act and supported by the authorities. In these circumstances, the trial judge did not exceed her jurisdiction in ordering a conveyance of encroached land (Taylor v. Hoskin, 2006 BCCA 39).

Driveway. An improperly located fence, in existence at the time the respondents built their driveway, caused the driveway to be innocently mislocated over a portion of the appellants’ land. The chambers judge correctly concluded that the present existence of a fence is not a requirement for relief under s. 36. The court ordered that the land on which the driveway was built be vested in the owners of the driveway with compensation payable to the appellants (Svenson v. Hokhold, 1993 CanLII 445 (BC CA)).

House. Upon the preparation of a survey for a prospective purchaser, the respondents discovered that their 50-year-old house encroached upon a lane, reducing the width of the lane. The municipality opposed their subsequent application for an easement or vesting. An easement was granted over the land encroached on by the house for the life of the house upon payment of compensation (Stewart v. Kimberley (City), 1986 CanLII 890 (BC CA)).

House. The respondents owned a 70-year-old house which encroached slightly on the adjoining property of the petitioners. The petitioners had recently purchased the property and completed construction of a new residence. They sought structural alterations to the respondents’ house to remove the encroachments, or an easement over the petitioners’ land. The court found that, although the cost of the alterations was modest, removal of the encroachment would significantly affect the respondents’ use of their house. Further, the grant of an easement for the lifetime of the respondents or while either of them continued to use the house as a principal residence would unreasonably restrict the respondents’ right to deal with the property. Applying the balance of convenience test, the court granted the respondents an easement and ordered compensation to the petitioners (Freeman v. Macdonald, 1991 CanLII 1889 (BC SC)).

House and Retaining Wall. A dispute arose between neighbours when the respondents began to build a fence along the boundary of their lot and discovered that the petitioner’s house and a retaining wall recently constructed by the petitioner encroached upon their property. The wall had been built without objection from the respondents along a line partially marked by an old fence, hedges, and trees. The new fence built by the respondents was located within one foot of the true property line and denied the petitioner access along the side of his house. Upon application by the petitioner, an easement was granted for the area formerly enclosed by the old fence, including the retaining wall, with compensation payable to the respondents. The retaining wall was of almost no use to the respondents and the petitioner’s need for access to his back yard was an important consideration. The petitioner was also entitled to remove the new fence and complete some landscaping at his own cost (Vineberg v. Rerick, 1995 CanLII 3363 (BC SC)).

Mobile Home Park. The court ordered that the title of land encroached upon be vested in the name of the neighbouring party which had constructed part of its mobile home park upon it. The vesting order was equitable in the circumstances and the balance of convenience favoured it because the reality of what presently existed would be recognized, the rights of innocent third parties would be protected, and one party’s investment would be protected while the other party could be compensated monetarily for its loss. Neither party was entirely at fault and neither was entirely blameless. The fact that the neighbouring properties were not strictly “adjoining” due to a channel bed owned by the Crown did not preclude the application of s. 36. The obvious intent of s. 36 of the Property Law Act is to provide a means of resolving ownership conflicts when construction or development on one owner’s land encroaches upon the land of another owner. Equally obviously, dependent upon the nature of the enterprise, the encroachment could well, as here, extend on to and over successive separately owned parcels of land. It would be irrational and absurd to confine the discretion to make remedial orders to only physically touching properties when the impact is the same upon land on the other side of the physically touching property (Hawkes Estate v. Silver Campsites Ltd., 1992 CanLII 712 (BC SC), affirmed 1994 CanLII 1737 (BC CA)).

Sidewalk. The petitioners and the respondent were neighbours who owned adjoining lots. The respondent’s husband, now deceased, assisted the petitioners in locating their house on their lot. A concrete sidewalk was laid at the back of the petitioners’ house, abutting the house and the common boundary between the lots. At the time, both parties thought the sidewalk was on the petitioners’ lot. A subsequent survey established that the sidewalk encroached on the respondent’s lot, and the respondent then sought to have the sidewalk removed. The sidewalk was constructed with and was an essential part of the continuing use of the petitioners’ house. It was necessary to provide reasonable access to the house. As such, the sidewalk was a building within the meaning of s. 36, and its continued use met the criteria for relief under this section. The encroachment arose as a result of an honest mistake. The sidewalk was a lasting improvement, and its removal would have made access to the petitioners’ residence impracticable. In declaring that the petitioners were entitled to an easement over the respondent’s lot, the court fixed the period of the easement as the period of time that the use of the petitioners’ house continues and held that the easement ends at such time as the house is removed, demolished, or otherwise destroyed (Dattolo v. Merlo, 1998 CanLII 6798 (BC SC)).

Access Road. The parties owned adjacent farm properties in the city of Salmon Arm. The petitioners gained access to their land via an access road long believed by the parties, their predecessors in title, and the city to be city property. A 2012 survey showed the access road was substantially encroaching on the respondents’ property. The respondents then took steps to block the petitioner’s access. The court found that the petitioners were entitled to relief under s. 36, vesting the property in them on payment of compensation to the respondents. Under the common law doctrine of non-derogation of grant (also known as the doctrine of apparent convenience and accommodation), the petitioners were entitled to an implied easement. They would also be entitled to an easement over the encroachment by way of necessity and were entitled to an easement over the encroachment under the doctrine of proprietary estoppel. Section 36(2) of the Property Law Act was engaged and equity required that the status quo that had existed respecting the access road be preserved (Bland v. Bland, 2017 BCSC 1712).

Easement or Vesting Order Granted in Part

House and Garage But Not Fenced Lands. The petitioners sought title to, or an easement over, a portion of the respondents’ property upon which the petitioners’ residence and outbuildings encroached and part of which their fence enclosed. The petitioners had constructed their residence and fence so as to encroach but did so negligently rather than intentionally. Placement of the garage interfered with the respondents’ access to their property. While the inconvenience and loss to the respondents was not trivial because of the encroachment of the buildings, removal of the garage to rectify the encroachment would far exceed the inconvenience and loss in value of the respondents’ property. The fence was another matter. Where a property owner negligently encloses their neighbours’ land by the construction of a fence, the property owner cannot then, with nothing more, seek title to that land under s. 36 upon payment of compensation. Although the court had no evidence of the cost of removing the fence, the court did have evidence of its location and construction and ordered removal within three months where the fence encroached on the respondents’ property. The court made a declaration that the petitioners had an easement over the respondents’ lot to the extent the existing structures, other than the fence, encroached for so long as the structures existed or for 80 years, whichever was less, and ordered compensation of $1,000 (Wells v. Little, [1987] B.C.J. No. 531 (QL) (S.C.)).

Easement or Vesting Order Denied

Entire Building. Without a building permit or a survey, the petitioner built a cabin located entirely on the respondent’s land. The application for a vesting order was dismissed. Section 36 of the Act contemplates a situation where a building encroaches on adjoining land. It does not authorize the court to make an order where no part of the petitioner’s building is located on the petitioner’s land. Further, it does not permit the court to make an order based on some arbitrary decision as to additional land surrounding the land upon which the building sits (Faith v. Spagnut, 1996 CanLII 2795 (BC SC)).

Shared Support Walls. The petitioner sought an order requiring the respondent to remove encroachments from its property. In response, the respondent sought an order vesting it with title to property owned by the petitioner upon paying appropriate compensation in kind. The dispute involved three buildings that had been constructed in a row with the walls of the building in the centre, the petitioner’s building, supporting the respondent’s buildings to the east and west of it. The petitioner sought to demolish its building and build another in its place. The court initially granted the relief sought by the respondent. The petitioner was to grant the respondent enough of the westerly portion of its lot to place the wall supporting the respondent’s westerly building within the respondent’s lot. In return, the respondent was to grant the petitioner a portion of the property to its east as compensation, such that the petitioner’s property would effectively shift its location to the east. The respondent was to pay the petitioner’s reasonable out-of-pocket expenses, with liberty to apply. On further application regarding the details of the conveyance and demolition, the court held that in making compensation within the meaning of s. 36(2)(b), the court could order the conveyance of a strip of land but could not detail what construction method should be followed in order to preserve the wall during the demolition. Nor could the court specify the precise indemnity provisions that the petitioner should provide in the event the wall collapsed during the demolition or the terms of any release the respondent must sign in the event the wall collapsed sometime in the future. Accordingly, the court held that it was unable to fashion a satisfactory remedy under s. 36(2)(b). A new order was made under s. 36(2)(c) requiring the respondent to remove its encroachments from the petitioner’s property or, in effect, to build support for its buildings on its own properties (Tai Wo Enterprises Ltd. v. 338822 B.C. Ltd., 1996 CanLII 2095 (BC SC); for earlier proceedings, see 1996 CanLII 3204 (BC SC)).

Parking Stalls. The plaintiffs and two of the defendants purchased separate but adjacent properties from the third defendants. At the time of the sales, all of the parties knew that some of the parking stalls adjacent to the plaintiffs’ motel encroached on the lot acquired by the two defendants. The plaintiffs sought equitable relief in the form of an easement or vesting order pursuant to s. 36 of the Act. The court found that the language of s. 36 does not appear to require that parties be ignorant of correct boundary lines before an encroachment can become the subject of an order for relief under this section. In determining the equities and the balance of convenience between the parties, the court found that the parking stalls on the encroachment could be accommodated on the plaintiffs’ land with little inconvenience or cost. Accordingly, the court dismissed the plaintiffs’ claim (Manita Investments Ltd. v. T.T.D. Management Services Ltd. (Realty World Capital), 1997 CanLII 4271 (BC SC), supplementary reasons 1997 CanLII 2618 (BC SC), affirmed 2001 BCCA 334).

Mobile Home. The plaintiffs and defendants owned adjoining lots. The plaintiffs’ mobile home encroached on the defendants’ lot, and it was an illegal structure under the district’s bylaws and regulations. In dismissing the plaintiffs’ application for a vesting order, the court found that the plaintiffs had been negligent, at the very least, in siting the mobile home as they did. The balance of convenience clearly was in the defendants’ favour. The evidence showed that the mobile home was capable of being moved, and if it were not moved, the defendants would incur costs in relocating their planned home, be deprived of views, and suffer some reduction in the value of their property (Wheeler v. Piggford, 1998 CanLII 6794 (BC SC)).

Tennis Court. Thirty-two years ago, the respondent resort owners constructed a tennis court that encroached on a small neighbouring property later acquired by the petitioners. While the petitioners were aware of the encroachment when they purchased the property 13 years ago, they took no steps to require the removal of the encroachment and an easement was never registered. The petitioners decided to construct a tennis court on an area that included the encroachment and they applied to court for an order removing the encroachment. In considering the balance of convenience, the court accepted the petitioners’ evidence that they did not request removal of the encroachment until now because they had no earlier plans for the encroached land and that, because of the small size and configuration of their property, it was not feasible to locate the tennis court elsewhere. The court inferred from the failure to register an easement no intention that the encroachment be permanent. Finally, in considering the relative size of the respondents’ property and the fact that the fence, asphalt and lamp post located on the encroachment could be easily dismantled and removed at nominal cost, the court granted the petition and ordered the encroachment removed (Robertson v. Naramata Resorts Ltd., 2005 BCSC 467).

Barn and Shed. The petitioners and respondent owned adjacent properties. A large barn and a shed on the petitioners’ property encroached on the property owned by the defendant. The barn and the shed were in place when the parties purchased their respective properties and the parties were aware of the encroachment at the time. The petitioners sought an adjustment to the boundary, an order compelling the respondent to sell the area of the encroachment to them, or an easement over the encroached land. By cross-petition, the respondent sought an order to remove the encroachments. The petitioners offered no evidence of an honest belief that the respondent’s predecessor in title agreed to allow the encroachments to continue and unsatisfactory evidence as to the value of the encroachments to them or the costs of their removal. The court accepted the respondent’s evidence that he wanted to build a private road to access part of his property and that the most feasible location for the road was along the boundary between the two properties and through the encroachment area. In the result the court ordered the removal of the barn and shed under s. 36(2)(c) of the Act (Gueldner v. Nichele, 2013 BCSC 2354).

Encroaching Buildings and Surrounding Lands

Easement or Vesting Order Granted in Part

Warehouse and Surrounding Lands. A warehouse encroached on the land of an adjoining property owner. The chambers judge erred in granting an easement under s. 36(2)(a) over that portion of the land of the adjoining owner on which the encroachment occurred, together with sufficient land to satisfy the bylaws of the municipality dealing with the relationship of buildings to property lines. The easement was to be in effect during the lifetime of the warehouse. There is nothing in the language of s. 36 to indicate that the Supreme Court is given a discretion to grant an easement or make a vesting order in respect of additional land to the parties obtaining the easement, or a vesting order to comply with the municipal zoning bylaws. The chambers judge did not, however, err in granting an easement during the lifetime of the building. The Court of Appeal allowed the chambers order to stand but amended it to limit the easement to the land encroached upon (No. 6 Road Properties Ltd. v. Anderson Investments Ltd., [1985] B.C.J. No. 2247 (QL) (C.A.)).

Shed and Surrounding Lands. The plaintiff’s father owned two contiguous pieces of land which were separated by a ditch. He sold one of the properties to the defendants, but neither party conducted a survey and the parties made the mutual mistake of assuming that the boundary was the ditch, when in fact a strip of land alongside the ditch always remained with the vendor. The error was discovered when a survey was done by the plaintiff for unrelated reasons. By this time, the defendants had constructed several moveable buildings and a large shed, all of which encroached over the legal boundary. The trial judge declared that the plaintiff was the legal owner of the disputed property and that the defendants had committed a trespass from the time the error was discovered and communicated to them. The court ordered the moveable structures removed from the property and granted an easement for 10 years for the large shed, including sufficient property to make it conform with existing municipal bylaws. On appeal, the court agreed but awarded nominal damages for the trespass and allowed the cross-appeal to an extent by finding that s. 32(1)(a) (now s. 36(2)(a)) of the Act does not give the court discretion to grant an easement extending beyond the land actually encroached upon. The easement was thus reduced to the foundation lines of the barn (Bayer v. Kehran Farms Inc., 1996 CanLII 3369 (BC CA)).

Common Law on Encroachments

For an example of a case where a court in a non-Torrens jurisdiction had to deal with a dispute arising over encroachments on an owner’s land, see Magee v. Saint John (City) (1883), 23 N.B.R. 275 (C.A.). In that case, the court decided that an oral licence allowing an encroachment and given by a previous owner bound a subsequent owner. Magee owned land and a dock on a harbour. Formerly, Burpee owned the land and dock. A railway company leased the wharf from the defendant city. While Burpee was owner of the land and dock, the railway company extended the wharf into the harbour and, in doing so, narrowed and encroached upon the entrance to the dock. Burpee gave an oral licence to the railway company to extend the wharf, and, in executing the licence, the railway company spent money. The oral licence given by Burpee was not a licence giving the railway company the right to exercise an easement upon land then owned by Burpee and now owned by Magee. To be binding, such a licence would have to have been given by deed. The oral licence given in this case did not have to be given by deed because the oral licence amounted to permission for the licensee (the railway company) to use the land of a third party (the defendant city), so as to cause an obstruction to Burpee’s, and eventually Magee’s, beneficial use of an easement to, or right of using without restriction, the waters of the harbour for the purposes of the dock. The railway company did not require the prescriptive period of 20 years to give it the right to retain the extensions made to the wharf; the railway company gained the right by the consent and licence of Burpee and the expenditure of money on the faith of the oral licence which rendered it irrevocable.