In a recent Kelowna court case, Oyelese v. Sorensen, 2013 BCSC 940 (CanLII), has received widespread local media attention as the Sorensens have been ordered by the Court to remove their encroaching swimming pool from their neighbors lands. Like most Real Estate Lawyers, our firm has received lots of questions on this case from local residents and local Realtors.
What Happened?
In 1998, when previous owners installed a chain link fence and based on the incorrect location of the fence, an expensive in ground pool was installed which, unbeknownst to either homeowners crossed over the property line. Mr. Sorensen was unaware of the encroachment when he purchase the home in 2007.
At the time of closing his home purchase, Mr. Sorenson was provided a “survey certificate” with hand draw location of the swimming pool which the previous owners certified as correct. (this is likely the subject of further court action)
In 2009, Mr. Oyelese purchased the neighboring property and discovered the encroachment when planning some landscaping improvements later in the year. Mr. Oyelese refused Mr. Sorensen’s subsequent offers to purchase the encroaching area.
The Law
The Survey Plan registered in the Land Title Office is the definitive property line at law. Section 36 of the Property Law Act does provide the court some flexibility, but its application was limited by the Supreme Court judge in this case.
Importantly for home buyers, the court was quite clear the “no reasonable person” should embark on a major landscaping project without determining the boundary of the property with an official survey.
The Judges Ruling – Ordered the Sorensen’s to remove the pool from the encroachment area within 75 days.
FOR BUYERS – What type of due diligence can be done prior to subject removal?
- Buyers can carefully review a subdivision plan showing the dimensions of the lot (Available from the Land Title Office);
- Buyers can review RDCO GIS (free search) to see their property lines relative to a satellite image;
- Buyers can obtain a consolidated site plan from a BC Land Surveyor; and
- Buyers can obtain a home owners title insurance policy;
Note: A home owners title insurance policy will not provide assurance from all encroachment (for example fences are often excluded from coverage).
Cudos: to Jennifer at Coldwell for taking extra time with a client to ensure a client was 100% satisfied with the location of a driveway easement – great work!
Written by Kelowna Real Estate Lawyer Peter Borszcz
Thank you to my associate Nancy Ling for her assistance with this article.