Legal Brief for April, 2016

Watch Where You Build That Garage!

Have you ever built something in your yard without worrying too much about where it was located?  I see a fair number of hands going up as you read this.  Our first impulse, especially in spring, is often to build first and ask questions later (if ever).  This can lead to some serious consequences for homeowners, particularly if the structure is something as large as a garage.  If you inadvertently build the structure in an area where there may be other legal interests affecting your property, you may end having to at best obtain what is known as an "encroachment agreement" in order to let the structure stay in place, or at worst alter or even move the structure altogether.

These issues often come to light when a property is being sold, and the seller has to provide what is known as a compliance certificate to the purchaser.  A compliance certificate is a certificate issued by the appropriate municipal authority which certifies that what is built on a property complies with the applicable zoning regulations.  As part of the review process the City of Edmonton, in the case of residents of Edmonton, will review the survey provided by the homeowner (known as a Real Property Report) to see if the structures on the property are fully on the property and are not built partially on a neighbouring property or onto an adjoining strip of land owned by the City (examples of which include a back lane or an adjoining walkway corridor or park area) or on a portion of your property that is reserved for other purposes (such as a utility right of way).

If what is built on your property is shown on the survey to have a portion that is on one of these other properties or areas, you have what is known in legal terms as an "encroachment".  When the encroachment is identified at the point of a sale transaction, the purchaser has the right to demand that the seller correct the encroachment, at the seller's cost.  In simple cases the encroachment can be dealt with by entering into an agreement with the owner of the adjoining property, whether it is a private landowner or the City, which provides that the neighbouring owner consents to the encroachment, thus allowing it to remain in place.  If however the encroachment is of a serious nature or encroaches onto a sensitive portion of a property, it may become necessary to physically alter or move the structure in order to eliminate the encroachment.  This can happen for example if a garage is built over top of a utility right of way area on a property.  The City has the right to require the homeowner to actually jack up the garage and move it forward, or backward, so that it no longer encroaches on the right of way.  There can be some significant costs involved if that becomes necessary.

The word to the wise then as construction season looms in Edmonton - make sure you obtain your permits, and then be very careful when you are doing your building.  Know where your property lines are and if there are any utility rights of way on your property that you have to stay clear of.  As the old saying goes, an ounce of prevention is worth a pound of cure (or a kilogram of cure for those born in the metric age!)