Encroachment

What is an encroachment in real estate?

An encroachment is an unauthorized physical intrusion by one property onto a neighbouring property. Common examples include fences built over the property line, decks that overhang, driveways that share a strip of the neighbour's land, and tree branches or eaves that cross the boundary. Encroachments are a defect in title until they are resolved, either by removal, by registering an easement, or by negotiating a transfer of the affected strip of land. They are distinct from registered easements, which are legal rights, not unauthorized intrusions.

How encroachments are discovered

The two main ways:

• Surveyor's Real Property Report (SRPR) — a current SRPR overlays the registered legal boundaries onto a scaled drawing of the actual physical features (fences, structures, sidewalks). Encroachments show up as physical features that cross the dashed boundary lines.
• Title insurance underwriting — the title insurer reviews available surveys and registered easements. If something is unclear, the policy may exclude or insure-over the encroachment depending on materiality.

Many residential transactions in Ontario close without a current SRPR because title insurance covers most encroachment risk. This is acceptable for routine sales but not when the parties are concerned about a specific structure.

Encroachment vs. easement

The two terms are frequently confused on the exam.

A long-standing encroachment can sometimes be regularized into a registered easement by agreement between the affected owners, but in Ontario's Land Titles regime, prescriptive easements cannot be created against Land Titles parcels. Encroachments on Land Titles property must be either physically resolved or contractually addressed.

A scenario the exam likes to test

A buyer makes an offer on a freehold home. After acceptance, the seller's lawyer delivers a recent SRPR showing the rear deck encroaches 14 inches onto the neighbour's lot. Options for resolution:

1. Seller removes the deck before closing and the offer proceeds.
2. Negotiate an easement with the neighbour granting the right to maintain the deck where it is. The easement is registered on title before closing.
3. Land transfer — the neighbour sells the affected strip of land to the seller, the deed is registered, and the encroachment is cured by re-drawing the boundary.
4. Title insurance insures over the encroachment, accepting the risk that the neighbour will eventually demand removal.
5. The buyer walks, citing an unsatisfactory title.

A registrant should disclose the encroachment to the buyer immediately on receiving the SRPR and let the buyer's lawyer drive resolution.

Where this appears in your Humber program

Encroachments are core content in Course 1: Real Estate Essentials under property law and title issues, and they reappear in Course 2: Residential Transactions when discussing the residential offer process, condition wording, and the role of the SRPR.

Practical guidance for registrants

• Ask the seller whether they have a recent SRPR before listing. If they do, review it for visible encroachments before the property hits the market.
• When representing the buyer, do not rely on title insurance to silently cover everything — title insurance excludes structural encroachments that pre-date the policy if not specifically insured-over.
• Disclose anything you can see on a walk-through that looks like an encroachment (fences off-line, sheds against property edges, trees with mature canopies overhanging) to the buyer in writing. Use it to set expectations before the SRPR arrives.

Frequently asked questions

What is an example of an encroachment?

Common examples of encroachment include a fence built over the property line, a deck or balcony that overhangs the neighbour's lot, a shared driveway that extends onto adjacent land, eaves or gutters that cross the boundary, tree branches or roots intruding from one property to another, and structures on city or municipal land without permission. Each of these is an unauthorized intrusion until resolved by removal, easement, or land transfer.

How do you solve a property encroachment in Ontario?

Encroachments in Ontario are typically resolved one of four ways: (1) the encroaching structure is physically removed by the property owner who built it; (2) the affected owners register an easement giving the encroacher legal right to keep the structure where it is; (3) the parties negotiate a transfer of the affected strip of land so the boundary moves; or (4) the buyer's title insurance insures over the issue, accepting the risk. Title insurance is the most common residential resolution.

Is encroachment a criminal offense?

No. Encroachment is a civil matter, not a criminal offense. The remedy is typically a court order requiring removal, money damages, an easement, or a transfer of land. The encroaching owner is rarely fined or prosecuted unless the encroachment also involves a separate criminal act (e.g., destruction of property, trespass committed with intent). Most encroachment cases are resolved through negotiation rather than litigation.

Who pays to fix an encroachment?

Generally, the owner whose structure is encroaching pays to fix it — by removing the structure, paying for an easement, or covering the cost of a boundary survey to clarify positions. In a sale, the seller's lawyer typically resolves any known encroachment before closing, with costs negotiated as part of the agreement. If title insurance insures over the encroachment, no immediate cash outlay is needed, but the structure cannot be modified or expanded without resolving the underlying issue.

Practice this topic

ExamAce covers encroachment scenarios in the Course 1 question bank, with practice questions on resolution paths, the SRPR's role, and the legal distinction from easements.