Section 36 Of British Columbia’s Property Law Act

A high fence in British Columbia may be helpful when a homeowner has children or even a dog, but what if the fence crosses onto the neighbour’s property?  Even more difficult is when a neighbour’s building crosses the property line or creates a safety concern.

Section 36 of British Columbia’s Property Law Act^[1] offers a solution where a building encroaches upon or a fence encloses part of the neighbouring property allowing either neighbour to apply to the Supreme Court for a resolution. The court then has the power to order one of three remedies:

1. Grant an Easement: The court can grant an easement over the part of the property encroached upon by the fence or building.  The court can then order compensation for the easement.
2. Title: The court can give the encroaching neighbour title to the property and order them to pay compensation.
3. Remove: The court can order the neighbour to remove the encroaching or enclosing building or fence.

Encroachment Case Law

In a recent court case, Oyelese v. Sorensen, 2013 BCSC 940^[2] (CanLII), the Sorensens were ordered by the Court to remove their encroaching swimming pool from their neighbours land. In 1998, an in-ground pool had been installed which crossed over the property line unbeknownst to either homeowner.  Mr. Sorensen purchased the home in 2007 unaware of the encroachment.  At that time, Mr. Sorenson was provided a “survey certificate” with hand draw location of the swimming pool. In 2009, Mr. Oyelese purchased the neighbouring property and discovered the encroachment, ultimately leading to the filing of the lawsuit.  The court decision directed the Sorensens to remove the pool within 75 days.

Contact a Vancouver Land Ownership Lawyer

If you have a neighbour who has encroached upon your property with their fence or even a building, it is important to speak to a Vancouver land ownership lawyer as soon as possible to discuss your possible remedies.  Contact either Ross McLarty or Murray Wolf for a no obligation 30 minute free consultation. Call the law offices of McLarty Wolf at (604) 688-9542 today or contact us via our online form here.

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