Toronto Central Real Estate

Before buying check survey for boundaries TheStar.com
May 24, 2008 Bob Aaron

Taking the law into your own hands over a property line dispute can be dangerous to your bank account, as one Toronto homeowner discovered recently.

Sharon and Marino Zorz and Katherina Attard are neighbours on Baby Point Rd., near Jane and Annette Sts.

The two houses were built about 80 years ago, and the old fence separating them was not constructed on the property line, but 15 inches west of the actual boundary.

The original deed to the Zorz house included a right-of-way over that adjoining (or easterly) 15-inch strip of the Attard property. For about 80 years, the fence between the houses enclosed the strip of land making it appear that the Zorz land was 15 inches wider than what was shown on the paper title.

In 2001, the properties were converted by the government into the Land Titles system, which effectively froze any rights to adverse possession or squatter's rights as they existed on the date of conversion, but it did not end those rights.

In the fall of 2006, Attard renovated her home and constructed an addition. During this process she removed the old fence and replaced it with a new one on the property line – east of where it had been for the previous 80 years.

As a result, the Zorz family could no longer access their garage, and sued Attard in November, 2006. Later that month they obtained a judge's order requiring Attard to remove the fence. Sometime afterward, the fence was removed and then reconstructed. In March, another court order required the second new fence to be removed until the case was heard.

The case came before Justice Ellen Macdonald in Ontario Superior Court in June last year.
Macdonald decided that the Zorz family had acquired adverse possession (squatter's rights) to the 15-inch strip of land east of the original fence line. The Zorzes and the previous owners of their home had demonstrated continuous, uninterrupted, open and "notorious" use of the disputed strip for many years, to the exclusion of Attard and the prior owners of her property.

Those rights existed in 1990 when the Zorzes bought the property. Even if they didn't acquire the rights at that time, the rights came into existence by their own occupation of the strip of land for more than 11 years from their purchase in 1990 to the conversion to Land Titles in 2001.

Taking all the facts into consideration, Macdonald awarded Sharon and Marino Zorz $7,500 in damages "on account of trespass, nuisance and invasion of privacy."

As well, she ordered the replacement of the fence at the same location as the original fence removed by Attard. Costs of $7,500 were awarded to the Zorzes in addition to the damages.
The case presents some valuable lessons for property owners who find themselves in a boundary line dispute.

Taking the law into your own hands to settle a boundary dispute is risky. Relocating a fence without agreement from the neighbouring owner or a court order is never a good idea.
Always review an up-to-date land survey when buying a house, so that you will know where your boundaries are, and aren't.

Bob Aaron is a Toronto real estate lawyer.
He can be reached at bob@aaron.ca or visit aaron.ca.