Your property rights when it comes it property boundaries, fences, airspace, peaceful enjoyment, and encroachments.
Ever wonder whether your fence defines property boundaries and whether there are laws about fences? Do you know what you own and control on your property? How about neighborhood noises … are there laws that deal with disturbances such as barking dogs, parties and loud people? Do you know what your rights are when there are things encroaching or intruding onto your property? Here’s a brief introduction to some of your rights with respect to your own property that you may or may not know about.
Did you know #1: There is more to property boundaries than just the fence
One might think that property boundaries are established by a fence, and one owns and can use all that is within it. Fences are often a physical marker for property boundaries. But there is more to property boundaries than just fences.
As a starting point, a Certificate of Title describes the location of legal property boundaries. There may be encumbrances, liens and interests registered on title affecting the property. For example, your municipality may have a utility right of way registered on title, which is an agreement that allows them to use your land in some way. That’s why it’s important to know what’s on your Certificate of Title and all registered documents on title.
Furthermore, disputes can happen where there is uncertainty over boundaries. For example, when physical boundaries established by fences don’t match the legal boundaries described in the Certificate of Title. Whenever you are dealing with uncertainty or disputes about property boundaries, you should get legal advice.
Did you know #2: Speaking of fences, there’s laws about those too
Speaking of fences, there are laws in each province about building them and who is responsible for paying for them. In Alberta, the Line Fence Act has limited application as it only applies to fences designed to keep livestock out of adjoining land. The Act says that when two owners or occupiers of an adjoining property want to build a fence for the common advantage of both of them, they are to equally share the costs of construction, maintenance and repairs. Let’s say the Act applies to your situation and you have a dispute with your neighbour about a fence’s quality, property location, or the money to maintain or repair it. Under the Act, such fence disputes can be referred to arbitration.
Other than checking your provincial laws about fences, you should also check your local municipal bylaws about fences – which specify height, location and whether development permits are required. As a tip, you should also check architectural guidelines for your neighborhood or community association when it comes to fences. There may be construction and colour guidelines to follow, sometimes even down to the exact paint colour.
Did you know #3: You are entitled to airspace above the surface of your property
Let’s say you are standing on the land surface of your property. Do you own anything above that surface? When you own a piece of land, the common law (judge-made law) recognizes a right to airspace up to a certain height. This has also been interpreted to mean that you own as much airspace as you can potentially and reasonably enjoy or use. Airspace entitlement is a little different for condo owners and tenants who live in buildings. In such situations, condo owners and tenants have a right to a piece of the stratosphere. Fun fact, this also helps explain why condominium law is often referred to as “strata law” in British Columbia.
What about what’s under the surface of your property? If you strike oil or gold, can you keep it? Read the LawNow article Property Laws You’ve Maybe Never Heard Of to learn more.
Did you know #4: You have a right to peaceful enjoyment of your property
Common law also recognizes a right to peaceful enjoyment on private property. Essentially, the law protects against unwanted intrusions or disturbances on your property. Municipal bylaws regulate conduct and activities on private property (and adjacent property) to make sure that you have enjoyable use of property. For example, municipal bylaws cover nuisances such as noise and enforcement.
The right to peaceful enjoyment also extends to tenants living in rented properties. This means landlords have a responsibility to deal with problems that infringe on a tenant’s right to peaceful enjoyment – such as excessive noise, aggressive behavior and disturbances caused by others allowed on the premises.
To learn more about what to do with noisy neighbours and more, refer to the LawNow article Common Neighbourhood Disputes and Solutions.
Did you know #5: It gets complicated when there are encroachments and intrusions onto your property
There is a range of caselaw when it comes to encroachments and intrusions onto your property. When it comes to trees, hedges, shrubs and the like, you may be able to remove branches from a tree planted on your neighbor’s lot if they encroach onto your property – as they are considered natural encroachments.
But it can get complicated when the encroaching tree is a straddle tree where the roots are growing in neigbouring or adjacent properties. Some cases say these types of trees are common property while some cases say root intrusion is a type of nuisance. So, there is uncertainty about what you can do with encroaching trees depending on how it’s growing and whether your actions will harm the health of the tree.
Intrusions into airspace above your property can also get complicated. The courts have viewed direct and permanent structural intrusions (such as the case of low hanging powerlines) as a trespass to be remedied. On the other hand, courts have viewed transient intrusions such as aircraft as not likely to interfere with enjoyment of your property.
To learn more about resolving disputes about encroachments onto property, refer to the LawNow article Neighbour Disputes: Encroaching people, trees, and smoke.
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The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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