This is the third episode in our new video series dramatizing encroachments.
The prior video compared and contrasted an encroachment, trespass, nuisance and boundary dispute.
Limitations and delay
Normally, an owner seeking to terminate an encroachment or recover money losses is subject to a three-year statute of limitations running from the commencement of the encroachment. [Bertram v. Orlando (1951) 102 CA2d 506]
The limitations period for an encroachment is the same as for a permanent nuisance since the damage to the owner is complete and certain as soon as the encroachment is created.
The date the encroachment was created is the critical date. Whether an owner has knowledge an encroachment exists on their property does not affect application of the statute of limitations to bar their claims for removal or money. The limitations period runs from the creation of the encroachment, not its discovery. [Castelletto v. Bendon (1961) 193 CA2d 64]
However, in the rare case where damage resulting from an encroachment is progressive over time, the three-year statute of limitations does not apply from the date of creation.
For instance, an owner’s building is damaged when a neighbor’s building leans on it, due to a poorly compacted fill. The degree of the tilt, and the resulting damage, increases over time.
More than three years after the damage commences, the owner seeks to recover monetary losses from the neighbor. The neighbor claims the owner is barred from recovering money losses by the running of the three-year limitations period from the date the encroachment first occurred.
However, the intrusion on the owner’s building is not only continuous but progressive — a further intrusion.
As with a continuing nuisance, a new claim accrues each time the loss increases. Thus, while the three-year statute of limitations does apply, it does not begin to run on the commencement of the encroachment, but runs from the date of the last increase in damage from the progressively increasing encroachment. [Kafka v. Bozio (1923) 191 C 746]
In addition to barring an owner’s relief for an encroachment on their property due to the statute of limitations, an action seeking money losses or an injunction against an encroachment may be barred by the equitable doctrine of laches, also called prejudicial delay or detrimental reliance.
A property owner loses their right to enforce a removal of an encroachment or recover money against the encroaching neighbor when the owner delays in making the claim, causing the neighbor to rely on the owner’s acquiescence to their detriment.
For example, an owner discovers their neighbor is constructing a potential encroachment. However, the owner refrains from saying anything or taking any action until the construction is completed. Here they are barred from enforcing its removal. The encroaching neighbor has relied on the owner’s acquiescence in undertaking and completing the construction. [Rankin v. De Bare (1928) 205 C 639]
Finally, an owner who allows a known encroachment on their property to continue for over five years risks losing property rights through a prescriptive easement or adverse possession since the adverse use of the owner’s property by the encroaching neighbor is known to the owner and continuous.
Thus, an owner needs to act promptly to enforce their right to remove the encroachment or receive compensation for lost value when a neighbor’s improvements encroach on their property.
