A long-running dispute between neighbours over a strip of land just 21.9 centimetres wide ended in court after years of litigation and 10 affidavits.
In Margaritis v. Milne, the Ontario Superior Court of Justice ruled on whether the doctrine of adverse possession applied, ultimately granting the land to one neighbour based on lasting improvements made under the belief it was their property.
Negotiations fail over small property encroachment
Milne bought his property in 1996, while Margaritis inherited his in 2017. A wooden fence and stone retaining wall marked the boundary between their properties. After his purchase, Milne made extensive changes, including building a new fence and retaining wall.
When Margaritis planned to redesign his backyard, a survey revealed a small encroachment from Milne’s property. Negotiations failed, leading to the lawsuit.
Cannot claim adverse possession
Milne claimed the land through adverse possession, which requires 10 years of exclusive use. However, Margaritis argued that Milne had moved the fence line to its current location in 1996, while Milne maintained that he re-built the fence on the pre-existing fence line.
It was found that both properties were converted to Ontario’s Land Titles system in 2002, and registered land in the system can’t be obtained by adverse possession unless that 10-year period took place prior to registration. Milne’s use didn’t meet the 10-year requirement before this time.
The court couldn’t confirm where the boundary was before the 1996 renovations, as Milne was unable to provide surveys, plans, permits or engineering drawings showing the work done. So, his claim to title under adverse possession was denied.
Milne obtains land because of honest belief it was his
Despite rejecting the adverse possession claim, the court awarded Milne the land because he made lasting improvements, like the retaining wall and stairs, believing it was his. This decision was supported by section 37 of the Ontario Conveyancing and Law of Property Act, which allows a person to retain land if they made improvements under an honest belief it was theirs.
The court found Milne’s belief genuine and the improvements lasting and substantial. Changing the boundary now would require significant modifications to Milne’s property, plus the boundary existed for more than 20 years without complaint. As well, granting the disputed area to Margaritis would require significant renovations to Milne’s backyard to add an “objectively insignificant area” to Margaritis’ property — no compelling reason arose as to why Margaritis required the strip of land.
So, Milne was granted the land but had to compensate Margaritis for its value. The exact compensation method is yet to be determined. An appeal was dismissed, as the Divisional Court upheld the original decision, agreeing that the improvements were lasting and that the judge had exercised appropriate discretion.
James Cook is a partner at Gardiner Roberts in Toronto and has been with the firm since he articled there in 2002. As a litigator in the firm’s Dispute Resolution Group, he has experience in a broad range of commercial, real estate and professional liability litigation. Phone 416-865-6628; email jcook@grllp.com. This article is provided for educational purposes only and does not necessarily reflect the views of Gardiner Roberts LLP.
Hello. I have a very similar situation where my former neighbours encroached over the property line when they installed an inground pool in the late 70s. They are both deceased, and the new owners moved in around Fall 2020, so they have lived there for almost 4 years and we are not on speaking terms due to this issue. We replaced the old rickety wooden fence that bordered the pool in 2003 with a fancier black ornamental metal one with stone cladded and cedar posts with wired lighting on the posts. We also added vines to it for some privacy and the vines filled in a lot of the space on the neighbours side which they helped to prune. Our property was also transferred to Land Titles in 2002, and we have the original survey from 1992 showing that all fencing has always been inside our property line by a margin of 12-18inches. We relandscaped our backyard and wanted to use this 12-18 inch space for some pergola footings to provide more shade and privacy, but the new neighbours denied us and sent us a legal letter claiming adverse possession. Can they do this after only living there for 4 years? The fence in 2003 (valued $3300) was our first major back yard improvement and in 2021-2022 we put in over $100K of landscape improvements, a therapy swim spa pool, a new deck, etc. We’re empty nesters now and were finally able to make our back yard more of an oasis that we can enjoy. But because of our layout and being a corner lot, we have to park one of our vehicles into our back yard. The other neighbours on the other side also had 80 sq ft of our land which we managed to get most of back. We need every square inch due to corner lot constraints, driveway visibility, and having to park one of our cars in our back yard. Both neighbours have been retaliative to say the least. The new owners with the pool might be “redoing” something to their pool, and I want to know if we have a chance of getting that strip of land. Our swimspa therapy pool was installed in 2021 and is just 18inches to 2 feet over from this same fencing and we are tight for space to get around our swimspa and manage the covers etc.
Also, just to add to my previous comment, we paid Van Harten Surveying Inc. $4000 to place markers on our property and to start creating a revised paper survey with recent changes. Their markers match the paper survey we have from 1992. All of our markers had been removed over the years. Doing this enabled us to proceed with installing more new fencing and a sliding gate along the other 2 property lines which now fully encloses our back yard for our dog and for our own security. The markers were placed by Oct 2021 and by Dec 2021 our fencing was installed despite our other neighbours’ strong objection to it and and to our height variance request which the City approved in the end. The neighbours’ with the pool do not accept the recent survey markers and the legal boundaries. They feel entitled to stop us from continuing to use that strip of land and wanted to get rid of our 20 year old vines.