Canada: The Perils Of Trespass

Last Updated: January 25 2017
Article by Peter J. Roberts

Few property disputes engender more anger and unreasonable behaviour than trespass and nuisance claims between residential neighbours.  Municipal and other authorities, such as regional districts or stratas, are either loath to get involved or simply refuse to exercise their authority, though that would often resolve matters sooner.  As a result, such disputes between neighbours often lead to acrimonious, lengthy and costly litigation.

A recent case provides a example and a cautionary tale for property owners seeking to build or renovate their property.  The lesson to be learned is: if you are going to engage in construction activities on your land, do it properly, makes sure you know where your property line is, obtain all the requisite approvals and permits, and get professional help if at all in doubt.  Your failure to do so will not only peeve the neighbours but, in the long run, be a lot more expensive.

Mr. Jensen and Mr. Lojstrup learned this the hard way recently when the court found them liable for trespass, granted injunctive relief requiring them to tear down much of their construction as well as awarding both special and punitive damages against them.

They had purchased a lot in the Shuswap Lake Estates development with a plan to build a home.  The result was described by the neighbour as a "monstrosity" and an "abomination".  The project started poorly when the two men built a retaining wall on their neighbour's property without permission.  While this was quickly removed when the neighbour complained, that temporary trespass resulted in an award of both general and special damages to compensate the neighbour for both the cost of a survey and the neighbour's actual legal costs in hiring a lawyer to protest the encroachment.

Despite this early trouble, the men went on to rebuild the retaining wall on their property but within the building scheme set back.  They also built their "dream home" partially within the set back and at a height that exceeded the building scheme requirements.  The reconstructed retaining wall was also quite different than the description given to the neighbour in a "gentlemen's agreement."  Despite the neighbour's vociferous protests, the regional district refused to take any action, in spite of the clear violations of the local zoning bylaws and building code.  As a result, the neighbour sued in both nuisance and trespass.

The nuisance claim was dismissed on the grounds that the "mere proximity of an otherwise safe structure on a neighbouring property" is not enough to trigger liability in nuisance.  However, the trespass claim was allowed on the grounds that the neighbour was entitled to enforce, in a private dispute, the development's governing building scheme.  The argument that the retaining wall was a "fence" for the purposes of the governing building scheme was quickly dismissed.  The court found that in building the second retaining wall and the house, the owners had breached the building scheme in several respects.  They had failed to prepare formal drawings and specifications.  They did not seek prior approval of their construction.  They failed to comply with setback and height restrictions.  They did not comply with the building code.  As a result, court concluded that "there has been a clear, ongoing breach of the statutory building scheme by the defendants."

The question then became what remedy to grant.  In deciding what order to make, the court noted that the defendants had made no effort to determine the location of their property line.  They had not submitted plans to anyone for approval or comment.  They "deliberately and knowingly breached the gentlemen's agreement . . . concerning the height of the retaining wall."  The neighbour's complaints were "treated with disdain and contempt".  As result, the court granted an injunction requiring the defendants to remove the retaining wall and offending portions of the house so that they were in compliance with the building scheme.  Interestingly, the court suspended the injunction for a period of thirty days so that the defendants could calculate how much this would cost them and the neighbour could decide whether he wanted to be paid this sum instead or to have the defendants' property fixed.

Because of the "highhanded" nature of the defendants' conduct, the court went on to award punitive damages of $15,000 against each of them ($30,000 in total).

If you run into allegations of trespass, nuisance and contravention of zoning bylaws or building schemes, it would be prudent to address those concerns immediately and transparently.  If you are in the wrong, rectify the situation.  If you are in doubt, obtain professional assistance to confirm your position.  Do not do as Mr. Jensen and Mr. Lojstrup did and charge ahead without professional assistance and in the face of the complaints of others.  If you do, it may turn out to be a very expensive exercise.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Peter J. Roberts
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