A property line encroachment is a structure, a fence, a shed, a deck, a driveway, sometimes just an eave or a gutter, that physically crosses from one property onto the one next door. It’s a different thing from an easement or a right-of-way, which is a registered legal right for someone else to use part of a property, and the two are commonly confused right up until one of them turns up mid-purchase. In a Toronto-area transaction, an encroachment usually surfaces through a survey, a lawyer’s title search, or a neighbour simply mentioning it, and it doesn’t automatically mean the deal falls apart. This guide covers what an encroachment actually is, how it turns up, how it typically gets resolved, and what title insurance does and doesn’t do about it. For everything else a Toronto purchase involves, see our complete Toronto real estate guide.
Encroachment versus easement: two different things
An encroachment is physical: something built on the wrong side of a boundary line, whether that’s a neighbour’s fence set a foot too far over, a shed with its footing on the wrong lot, a driveway that drifts across the line, or an addition whose eave overhangs a neighbour’s air space. Nobody granted permission for it. It’s simply there, usually because whoever built it never had a survey done, or built to a fence line that was never actually the legal boundary.
An easement, and a right-of-way as a specific type of easement, is legal rather than physical. It’s a registered interest that gives someone, another property owner, a utility company, the municipality, a documented right to use part of a property for a stated purpose: a shared driveway between two semis, a utility line running under a backyard, a footpath to a neighbour’s garage. An easement shows up on title whether or not anything is physically built on it. An encroachment usually doesn’t show up on title at all until a survey or a neighbour reveals it. Both can affect what you can build and how a lender or insurer looks at the property, but they’re different problems with different fixes.
How an encroachment actually turns up during a purchase
An up-to-date Surveyor’s Real Property Report, the document a licensed Ontario Land Surveyor prepares showing exactly where boundaries and structures sit, will show a fence, shed, or driveway crossing the line if one exists. Our guide to land survey costs in Ontario covers when ordering a fresh one actually makes sense, since most Toronto buyers today rely on title insurance instead of a new survey for most resale purchases. A lawyer’s title search can also flag an existing registered encroachment agreement or a note on a prior survey held in the file. And sometimes it’s simpler than either: a neighbour mentions during the process that their fence, or yours, has always sat a little off the actual line.
None of these routes means a problem was hidden or missed earlier. Encroachments are common enough in older, established neighbourhoods, where fences went up decades before anyone checked a survey, that finding one partway through a purchase is closer to routine than alarming.
Does finding one mean the deal is off
No, and in most cases it isn’t close. The two normal outcomes are an encroachment agreement, a registered document where the affected owners formally agree the encroachment can stay on stated terms, and coverage under a standard title insurance policy, which typically responds to loss connected to an existing, undisclosed encroachment rather than requiring it to be physically removed. Either resolves the practical problem well before closing in the overwhelming majority of cases, and neither is presented here as a guarantee: an encroachment agreement still takes a lawyer, both owners’ cooperation, and real time to put in place, and it isn’t something to assume will happen instantly just because it usually does.
A genuine dispute, where a neighbour refuses to acknowledge an encroachment or won’t agree to any resolution, does happen, but it’s the exception rather than the default. When it does, the path runs through a real estate lawyer and, if it can’t be settled directly, potentially a court application, not something a buyer or seller works out informally over a fence line.
What title insurance actually covers here
A standard owner’s title insurance policy in Ontario typically covers certain encroachment issues alongside its broader protection against fraud, forgery, and undisclosed liens on title, which is one of the concrete, practical reasons most Toronto buyers carry a policy today regardless of whether an encroachment is known about at the time of purchase. Our guide to title insurance in Ontario covers what a standard policy costs and what else it protects against.
What title insurance doesn’t do is make a known, existing encroachment disappear. It protects against financial loss if the encroachment later causes a problem, a neighbour’s successful legal claim, a lender’s refusal to finance, a buyer’s own resale complication, not against the encroachment itself continuing to exist. A known encroachment discovered during a purchase still generally needs to be dealt with directly, through an encroachment agreement or a negotiated resolution, before or as part of closing. Title insurance is protection against the risk the encroachment carries, not a substitute for resolving it.
Boundary and fence disputes between neighbours in Toronto
Ontario’s Line Fences Act sets out a province-wide process for resolving disputes over building or repairing a shared boundary fence: an owner can ask a municipality to appoint fence-viewers, who hold a hearing and issue a binding decision. The Act applies by default, but a municipality can opt out of it, and Toronto did, in a City Council decision on May 22, 2018 made under the City of Toronto Act. Toronto’s Municipal Licensing and Standards division no longer accepts applications for line fence viewing, so the fence-viewer process isn’t available to a Toronto property owner the way it would be in most of the rest of the province.
Inside Toronto, a dispute over a shared boundary fence gets resolved the same way a genuine encroachment dispute does: direct negotiation between the neighbours, a community mediation service, or, if it can’t be settled that way, the civil court system. Whether or not a municipality has opted out, the Line Fences Act was never built to settle where a boundary actually sits; it only ever covered building or repairing a fence at a boundary both owners already agree on. Where the dispute is genuinely about the location of the line itself, not just the fence sitting on it, the underlying question gets settled by a licensed Ontario Land Surveyor’s determination, a negotiated agreement, or, in a real dispute, a court action or an application under Ontario’s own Boundaries Act to have the boundary formally confirmed.
Frequently asked questions
What’s the difference between an encroachment and an easement in Ontario?
An encroachment is a physical structure, a fence, shed, deck, driveway, or even just an overhanging eave, that crosses from one property onto a neighbouring one without any legal right to be there. Legally, an easement is a different kind of thing: a registered right for someone else, another owner, a utility company, the municipality, to use part of a property for a specific purpose, like a shared driveway or a buried utility line, with a right-of-way simply one particular kind of easement focused on passage or access. Whether or not anything is built on it, an easement shows up on title. An encroachment usually doesn’t; it’s invisible on title until a survey, a title search, or a neighbour turns it up.
How does an encroachment usually get discovered during a Toronto purchase?
Most often through one of three routes: an up-to-date Surveyor’s Real Property Report showing exactly where boundaries and structures sit, a lawyer’s title search turning up an existing registered agreement or a note from a prior survey, or simply a neighbour mentioning it during the process. Since most Toronto resale buyers rely on title insurance rather than ordering a fresh survey, an encroachment sometimes doesn’t surface until closing is already underway, which is one reason a lawyer’s title search matters even when a survey isn’t ordered. Finding one this way is common in older neighbourhoods and doesn’t mean anything was missed or hidden earlier in the process.
Does title insurance mean I don’t need to worry about an encroachment?
No. A standard title insurance policy typically covers financial loss connected to an existing, undisclosed encroachment, which is real and useful protection, but it doesn’t make the encroachment itself go away or replace resolving it directly. A known encroachment discovered during a purchase still generally needs an encroachment agreement or another negotiated resolution between the affected owners. Think of title insurance as protection against the risk an encroachment carries going forward, not a substitute for dealing with an encroachment you already know about. Your real estate lawyer can walk you through which situation you’re actually in.
Can I use the Line Fences Act to resolve a boundary dispute in Toronto?
Not through the fence-viewer process most of the province uses, because Toronto formally opted out of the Line Fences Act in 2018, and the City’s Municipal Licensing and Standards division no longer accepts fence-viewer applications. Even where the Act does apply, it was only ever built to resolve disputes over building or repairing a fence at a boundary both owners already agree on, not to determine where the boundary itself actually sits. Inside Toronto, a fence or boundary disagreement typically goes to direct negotiation between neighbours, a community mediation service, or, where it can’t be resolved that way, the civil court system, with a licensed Ontario Land Surveyor settling any real question about where the line actually falls.
What if my neighbour refuses to agree to an encroachment agreement?
This is uncommon, but it does happen, and it’s the one situation genuinely worth pausing a purchase or sale over rather than working around it informally. Your real estate lawyer is the right first step: they can confirm exactly what a survey or title search actually found, explain what your options are given the specific encroachment, and open a conversation with the other owner or their lawyer on your behalf. Most disagreements resolve once both sides see the survey and understand what’s actually being asked, an acknowledgement in writing, not the removal of anything. Where a neighbour genuinely won’t engage or won’t agree to any resolution, the remaining path is a court application, which is a real, sometimes lengthy process, and exactly why getting a lawyer involved early, rather than after an offer is firm, matters more than it might seem to at the time.
An encroachment or easement question on a property you’re buying or selling is a real estate lawyer’s job to resolve, not something to work through alone. This guide explains the general mechanics; it doesn’t resolve any individual reader’s situation. Browse current Toronto listings, or get in touch with our team if you want to talk through what a specific property’s survey or title search has turned up, and see the rest of our guides for what else a Toronto transaction involves.