Encroachment on an Ontario Property: What Buyers and Sellers Must Do When a Fence, Deck, Shed, or Driveway Crosses the Line

Step 1: Understand How Encroachments Are Found — Survey and Title Search

In my years as a broker, most encroachments don’t surface at the showing — they surface during the lawyer’s due diligence. In Ontario, two tools do the work.

• Surveyor’s Real Property Report (SRPR): prepared by a licensed Ontario Land Surveyor, it maps the lot dimensions, buildings, fences, accessory structures, easements, and any encroachments. It tells you whether the boundary on paper matches what is actually on the ground.
• The lawyer’s title search: this reveals what is registered against title — easements, encroachment agreements, and similar. But remember the key distinction: a title search tells you what is registered on paper; a survey tells you what is physically on the ground — neither replaces the other.

In practice, many Ontario homes have a survey that is decades old, or none at all. It is very common for a seller to have no recent SRPR. When that happens, an encroachment often stays hidden until the home inspector notices a leaning fence or an obviously offset driveway, or until you ask for a fresh survey.

Step 2: What an Encroachment Means for the Buyer at Closing — Severity Depends on Type

Don’t panic when one shows up. Encroachments vary enormously in seriousness, and I sort them into a few buckets with my buyers.

• Your structure over the neighbour’s lot (you are encroaching): the neighbour can, in principle, demand removal or relocation. If the offending structure is part of the home you are buying — a deck, a corner of a garage — that risk lands on you.
• The neighbour’s structure over your lot (they are encroaching): part of the land you are paying for is occupied by someone else’s thing, which can limit future additions, fencing, or resale.
• Encroachment onto municipal land or a public easement: for example, a driveway extending onto the city’s road allowance, or a shed over a municipal easement. These may require an agreement with the municipality and take longer to resolve.

The judgment call is simple: is the encroachment minor and mutually accepted, or does it limit your normal use of the land or expose you to a removal demand? The former can usually be covered by title insurance or an encroachment agreement; the latter should be resolved before closing, or re-priced.

This is exactly why I push buyers to keep a lawyer-review condition (and, where needed, a survey condition) in the offer rather than going firm blind to the boundaries.

Step 3: Title Insurance vs. Survey — Two Different Products, Don't Treat One as the Other

Many buyers assume that buying title insurance covers every possible boundary problem. That is a common misconception. According to the Association of Ontario Land Surveyors (AOLS), title insurance and a survey are mutually exclusive products — neither replaces the other.

• The SRPR tells you what you are actually buying: where the boundaries are, how close structures sit to the line, whether anything encroaches. It is the up-front clarity.
• Title insurance is after-the-fact compensation: for an insured title defect that was unknown at closing and later causes a financial loss, the policy may pay out.

AOLS is explicit: title insurance cannot create or move boundaries, nor remove a legal encumbrance such as an easement, and it will not pay to remove a fence the owner wrongly placed after the purchase. It compensates with money; it does not legalize a structure or correct a boundary.

So my advice for homes where structures sit close to the line — decks, pools, garages tight to the boundary — is to get both a recent SRPR and title insurance, not to use insurance as a way to skip the survey. Known disputes, active litigation, and unresolved neighbour conflicts are typically excluded from coverage.

Step 4: Legalize the Problem with an Encroachment Agreement or Easement — the Practical Path Before Closing

If a survey confirms a genuine encroachment, the common Ontario fixes are:

1. Sign an encroachment agreement and register it on title: drafted by a lawyer, signed by both owners (or with the municipality), it formally permits the structure to remain at the boundary and sets out each side’s responsibilities. Registered on title, it binds future owners too — one of the cleanest long-term solutions.
2. Register an easement: in some cases an easement is used to confirm one party’s right to use the adjoining land.
3. Remove or relocate the encroaching structure: move the fence or shed back within your own boundary and eliminate the problem at the source.
4. Insure over the encroachment with title insurance: for a known but minor encroachment, some policies can specifically cover it — but read the policy, because known disputes are often excluded.

Who pays, and whether it is handled before or after closing, are all negotiable. I usually turn it into leverage: either the seller resolves the encroachment agreement before closing, or we adjust the price / arrange a credit so the risk is quantified into the deal rather than dumped on the buyer.

Whichever route you take, any agreement must be reviewed by a lawyer and properly registered. A handshake understanding is worthless at resale.

When people hear “encroachment,” many think of adverse possession (so-called squatter’s rights) — the idea that occupying land long enough lets you claim it. In today’s Ontario, that path is essentially closed for the vast majority of properties, because Ontario’s land registration moved from the old Registry system to the Land Titles system.

• Under the Real Property Limitations Act (RSO 1990, c L.15), traditional adverse possession requires open, continuous, exclusive possession for ten years, with the intent to exclude the true owner, who must remain out of possession throughout that period.
• Under the Land Titles Act (RSO 1990, c L.5), section 51(1), once a parcel is in the Land Titles system, no new adverse possession claim can arise after conversion — only rights that had already matured before conversion can be preserved.
• Ontario began converting properties from Registry to Land Titles around 2000, and by 2011 the vast majority of Ontario properties had been converted.

The practical takeaway for buyers: do not assume “the neighbour’s fence has been on my land for years, so it’s mine now,” and equally do not assume occupying someone else’s land long enough makes you safe. An encroaching structure should be handled with an agreement or removal — relying on adverse possession to “solve it naturally” is not realistic in Ontario today.

The seller has no recent survey. As a buyer, should I pay for one myself?

If structures such as a deck, garage, pool, or fence sit clearly close to the boundary, or you plan an addition or new fencing, I'd recommend commissioning a recent SRPR from a licensed Ontario Land Surveyor. Seeing exactly what you are buying before closing — for a few hundred to a couple thousand dollars — is far cheaper than discovering an encroachment dispute afterward.

I bought title insurance — does that mean I can ignore an encroachment?

No. Title insurance compensates for insured title defects that were unknown at closing and cause a financial loss; it cannot move boundaries or legalize an encroaching structure. Known encroachments and active disputes are typically excluded. For homes close to the line, get both a recent survey and title insurance.

The neighbour's fence has been on my land for years — will that land eventually become theirs?

In today's Ontario, almost never. The vast majority of properties are in the Land Titles system, where no new adverse possession claim can arise after conversion. The right move is to have a surveyor confirm the boundary, then resolve it with an encroachment agreement, removal, or legal action — not to rely on "occupied long enough, so it's mine."

What is an encroachment agreement, and does it need to be registered?

It is a formal agreement between owners (or with the municipality) permitting an encroaching structure to remain at the boundary and setting out each side's responsibilities. Drafted by a lawyer and registered on title, it binds future owners too — one of the cleanest long-term fixes. A verbal understanding has no effect at resale, so always register it.

Once an encroachment is found, can the price still be negotiated?

Yes. I usually turn an encroachment into leverage: either require the seller to resolve an encroachment agreement or remove the structure before closing, or negotiate a price reduction / credit so the risk is quantified into the deal. This works only if the offer kept a lawyer-review condition and, where needed, a survey condition — which is why those conditions matter when you write the offer.