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Dispute over fence location results in liability for trespass

Here is an article from Oct 26, 2021 by James Cook – R.E.M. Real Estate Magazine about a dispute between neighbours over the location of a fence. It is a good reminder to make sure to to obtain an up-to-date survey before taking any actions as to where a property line is located.

Fences may make good neighbours but not when they can’t agree on where the fence should be located.

In Lombardo v. 2672140 Ontario Inc., 2021 ONSC 5523 (CanLII), the parties owned adjacent properties in Flamborough, Ont., and were embroiled in a dispute over where a fence separating the properties should be located.

There was no dispute that the respondents held registered title to the land on which the fence was located. However, the applicants sought ownership of the lands on their side of the fence by way of adverse possession. In response, the respondents sought a declaration that the applicants were trespassing when they built the fence. They requested an order that the fence be removed.

To acquire land by “adverse possession,” an applicant has an onerous burden to demonstrate that for a period of 10 years they had:

  • actual possession of the lands in question;
  • the intention of excluding the true owner from possession; and
  • the true owner was effectively excluded from possession.

An adverse possession claim will fail unless the applicant meets each of the three criteria: McClatchie v. Rideau Lakes (Township), 2015 ONCA 233 (CanLII).

In Ontario, the conversion of lands from the older registry system into the Land Titles system “stops the clock” on claims for possessory title that have not yet been created. In the case at hand, the property was converted to Land Titles on December 23, 1996. The applicants’ claim for adverse possession had to have crystallized by that date.

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