Homeowner best practices

9 ways for homeowners to be BoundaryWise™. Looking to buy or sell a house? Or perhaps your neighbour is putting up a fence that's a bit too close for comfort. Here are some tips to understand your property lines and the rights that go along with securing those boundaries.

1. Get a survey plan and keep it secure

A survey plan is a valuable asset: keep a copy of the survey with all of your other important papers in a safe place. The information shown on the survey plan is important in assessing and maintaining your property's value.  It provides information that lawyers depend on when issuing their Opinion of Title and that banks depend on when making land-secured loans.

If you do not have a survey plan, an existing plan may be available for purchase. Alternatively, you can engage a licensed land surveyor to create a new survey. Survey plans enable you to demonstrate your boundary claims when needed, help you to obtain building permits and support real estate transactions and new mortgage applications. Present the survey to prospective purchasers when selling your house or on any occasion when you need to map out what you own.  

Please remember that an older survey plan is a snapshot of the property at that time and may not be an accurate reflection of what exists on the property today. If you are unsure, consider consulting a surveyor or commissioning a new survey.

2. Know what you are buying or what you own

When purchasing a property, a realtor escorts you on a tour to enable you to inspect the condition of the land and the building structures. Afterwards, most people prudently hire a building inspector, have their lawyer search title and check on the existence (and completion) of past building permits. However, these basic precautions do not reveal enough about the true nature of the property you are purchasing.

A survey plan enables you to compare what actually exists on a property with the information contained in registered documents such as a deed or parcel register (PIN)—information that may be inaccurate and taken for granted to be true. For example, the actual dimensions of the land may not precisely match what is described in the deed. Building  shown on the survey plan can be directly compared with the municipal zoning by-laws for any specific property. It is well worth understanding the zoning restrictions that affect your property or a property you intend to acquire in the future; this is particularly important if you plan to build a house, an addition or develop the land in some way.

There are other important measurable situations to be aware of, such as if a neighbouring structure or fence is encroaching onto your property—or conversely, the extent to which your buildings or fence might be encroaching onto neighbouring land. The location of registered easements and the physical presence of overhead wires, buried pipes and conduits within them can also be of concern. Sometimes an easement may not be registered even though there is physical evidence of utility services (such as overhead wires or poles), or someone else's driveway crossing a portion of your land.

It is always a good practice to be aware of the rights and limitations associated with your land. Most importantly, know the location of the boundary—that invisible limit—enclosing what you own.

3. Use title insurance to your advantage

Purchasing title insurance has become standard practice in today’s real estate transactions—but it is not a substitute for the benefits of a professionally prepared survey plan. Title insurance helps correct a title deficiency or compensate you for the adverse effects and possible legal costs associated with title issues or problems. Because it is an insurance policy, it is subject to exclusions from coverage, including issues or problems with fences, boundary walls and other items.

Title insurance is not boundary insurance!

Title insurance is a relatively new development in real estate transactions in Canada, though it has been in common use in the United States for many years. In the US home purchasers need to provide a survey in order to qualify for a title insurance policy, which in turn is required to obtain a mortgage. The survey helps the American title insurance companies assess their risks prior to writing a policy. This is currently not the practice in Canada though this may change someday. Having a survey plan should be a critical part of your due diligence as it will protect you from buying a “property lemon.” If you suffer a loss, due to a covered title issue, these companies may provide a payout—but why suffer the loss in the first place?

You should review your title insurance needs with your lawyer before purchasing a policy. Having a survey plan with you will help in that determination. If you find a problem, your lawyer could ask the existing owner to use their coverage to resolve it. If you currently own and have a policy in hand, your acquisition of a plan may reveal issues that you can get the policy to resolve.

4. Be knowledgeable about property enclosures

Willfully or accidentally, some people extend the use of their land onto a neighbouring property. People living in rural areas may expand the use of their yard into the ploughed fields of a farmer's property over time. In urban areas, this often happens when fences are built on the wrong side of the property line or with land adjacent to hydro corridors, conservation lands, parks and large properties where boundaries are not actively observed. Greater vigilance about changes around your property can prevent boundary encroachments, but they often escape notice. A survey will help you see them before they can grow into a problem too obvious to ignore.

If you discover that a neighbour’s fence is in the wrong location, speak to your neighbour about it as early as possible. You could offer to help move the fence to the correct location if necessary. An incorrectly located fence restricts the full enjoyment of your property, and may potentially create ownership rights for your neighbour if left unresolved over time. Never assume a fence properly marks the property boundary, as the fence could have been intended only to add privacy or convenience, or may have been erected without proper regard for the boundary in the first place. Do not presume you can widen a driveway, erect decorative fencing or add landscaping near a front sidewalk or curb, as it may cause the city to demand removal or an encroachment agreement.

5. Protect your survey bars and give them legal tending

If surveyors ruled the world, every property corner would be marked and brightly painted so that everyone is aware of where one property ends and another begins. The reality is that most landowners are confused about the exact location of the corners of their land. Most lots and individual properties created by Plans of Subdivision in the GTA were marked by official survey monuments (iron bars) at each lot corner—but shifting soil, construction and the passage of time have brought about the disappearance of most survey bars, which are only replaced when a more recent survey is performed.

If survey bars do exist on your property, they are probably located a few inches under the grass and detectable only with a metal detector. If you know the locations of your corner bars, actively protect them by preventing utilities or yard workers from disturbing or removing them. Survey bars are valuable to you and the greater community as an enduring record of legal boundary locations. In fact, they are so important that the Criminal Code of Canada forbids their removal under penalty of law. If you are having a survey performed on your property, request that the surveyor show you the locations of existing survey bars or set new survey bars at each corner. If you are buying a new home, request that the builder have their surveyor mark all corners of the property as a condition of closing the sale.

6. Get a written report from surveyors and other professionals

“Get it in writing” is timeless advice that applies to any activities or services involving your home or property. Whenever you are having work performed on your land, request a written summarized statement or report outlining what was done and any issues that need further consideration. 

This is particularly important when dealing with boundary concerns. If a surveyor comes on to your land to mark the boundary, do not assume that they will provide you with a copy of the plan unless you hired them to perform a Surveyor's Real Property Report. Discuss with the surveyor any boundary issues or concerns, and ask to receive a reporting letter about your property details. Do not be afraid to ask questions. Most professionals are glad to share their specialized knowledge, and you may learn important facts about your property that will help you sometime in the future if a problem arises.

7. Develop a trusted professional relationship with a surveyor

An Ontario Land Surveyor is a licensed professional—like dentists, doctors and lawyers—with a unique set of skills embodying elements of engineering, mathematics, communications, land law, cartography, computer expertise and more. Surveyors operate within prescribed practice standards and have reasonable obligations when providing survey services to you. In Ontario, licensed surveyors must belong to the Association of Ontario Land Surveyors, a professional body that governs the practice of surveying in the province and mandates surveyors to participate in ongoing education and professional development.

In short, an Ontario Land Surveyor is a professional that offers unique skills that require many years of training, expertise and accreditation. It is a good idea to develop a professional relationship with a local surveyor, especially if you buy and sell homes or land from time to time. A surveyor’s advice is always valuable, but a long-term trusted relationship with a surveyor can be priceless.

8. Speak up—and get it on the record

When a boundary dispute arises or a potential encroachment or trespassing situation occurs involving your land, it is important to act quickly and decisively to protect your property rights. The natural inclination to avoid conflict or confrontation and simply tolerate the situation is unwise—especially with regard to property law. Failing to act or respond to persistent trespassing or boundary encroachments can result in long-term legal consequences where your silence can be interpreted as acquiescence or implied permission for the act to continue.

Communicate with the neighbour. If you have a survey plan, consider sharing it with all your neighbours so they are aware of the boundary locations. If you do not have a survey, propose to jointly hire a surveyor to stake the boundary between your properties. If the dispute continues and the situation deteriorates, be sure to keep a written record of events, backed up by photos and videos if possible. If you are forced to seek legal advice, your written notes, photos and timeline of how the events unfolded can greatly help your lawyer resolve the situation, and might serve as the basis of a legal affidavit.

9. Get the professional help you need

The do-it-yourself trend is a great way to learn self-reliance, but there are some tasks that are best left to professionals—especially issues, problems and special situations involving land and property boundaries. These are seldom do-it-yourself situations and it is wise to engage the appropriate professional like a lawyer, surveyor, engineer, architect, planner, realtor or landscaper. As the saying goes: “If you think hiring a professional is expensive, consider the cost of hiring an amateur.”

A lawyer is the best resource when circumstances turn adversarial and legal advice is needed. Only Ontario Land Surveyors are licensed to provide opinions on the locations of property boundaries in Ontario. Your property is likely your single biggest investment, so the sensible decision is to use a licensed surveyor to determine your property boundaries.

Summary

Learn about your property rights and land boundaries, and how to protect them. Get help with planning your land development project, resolving boundary issues and disputes, and obtaining the up-to-date information you need to make vital decisions. Preview and purchase an existing property survey and engage professional survey services where necessary.