In this Case, the Court transferred sliver of land, where Garage encroached, to Garage owner upon payment of reasonable fee for the land. The court was faced with a Garage that was built too far over onto neighbour’s land. The Garage was already historically taken down and rebuilt on what the then neighbours were convinced was completely in the right place, but as it turned out several years later when new neighbours bought the adjacent house, the Garage was still too far over. The new neighbours wanted the garage torn down and re-re-built, but the court rejected this option. Although adverse possession could not be made out (occupation was less than 10 years during time property was in the Registry system before transferred to Land Titles), the court was asked to either:
- exercise its power under r s. 37(1) of the Conveyancing and Law of Property Act, R.S.O. 1990, c. C. 34, (“CLPA”) to declare a lien in favour of the garage owner on the neighbour’s property and/or
- exercise its power under s. 37(2) of the CLPA to grant them property rights to the sliver of land occupied by the garage in exchange for a payment of a fair price.
The court opted for the last option, but never addressed the issue of whether that relief was available when properties were in Land Titles.
The case contains a fulsome review of the elements needed to trigger section 37 of the CLPA.
Corkery v. Moffitt, 2022 ONSC 105 (CanLII)
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc105/2022onsc105.html