Not on My Land – Two Owners Battle on the Location of a Cottage

cabin

Oops. You built a cottage onto a neighbouring lot by accident, and the owners of that lot found out. Now what?

Well, the decision of Limacher v Pickering, 2013 SKQB 396 (http://canlii.ca/t/g1vwk) answered that question for one pair of neighbours. Limacher was the owner of the land that was encroached, and Pickering was the offending neighbor.

The land involved in the dispute was purchased by the defendant’s father 82 years ago, and through a number of transactions, sold to the Plaintiffs in 2003. Limacher was suing Pickering for damages and a mandatory injunction that required the property to be torn down. There was some dispute as to whether they had knowledge of the encroachment at the time they purchased the property. They found out with certainty that there was an encroachment in 2008, and demanded that Pickering remove the offending addition.

The encroachment was on .6% of the total land. The land was being used for investment purposes, and other than some cleared away bush, no improvements to the lot had been completed. Nonetheless, the Limacher alleged that the encroachment made the lot valueless.

Limacher alleged that they should be entitled to use the property free and clear. Pickering relied on Improvements Under Mistake of Title Act and the Queen’s Bench Act to argue that, in the circumstances, damages, instead of the injunction would be appropriate.

The findings of the judge were interesting. He noted that Limacher did not provide any evidence to show how the value of the lot was decreased by the presence of the encroachment. Pickering on the other hand, did not provide the right evidence to fit under the Improvements Under Mistake of Title Act. He made his decision under the remedial sections found in the Queen’s Bench Act. Based on the evidence, he did not grant the mandatory injunction, and he was challenged in coming up with the right assessment of damages under the claim.

The judge awarded $300 in damages for the ongoing trespass, and $2000 in damages for the easement granted to the trespassers for the lifetime of the encroaching structure. The property was not allowed to be rebuilt or substantially renovated to extend its life. However, because the plaintiffs were largely unsuccessful with their claim, party and party costs were awarded against them, which would largely mitigate any award they were to receive.

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