Zorz v. Attard, 2008 CanLII 2760 (ON S.C.) was the case of two neighbours whose houses were built about 80 years ago on Baby Point Rd. near Jane and Annette Streets in the City of Toronto. The fence separating the houses was constructed 15 inches west of the actual boundary, making it appear that the Zorz land was 15 inches wider than what was shown on the deed. The original deed to the Zorz house included a right-of-way over the 15-inch strip of the Attard property.
In 2006, Attard renovated her home and constructed an addition. In the process, she removed the old fence and replaced it with a new one on the true, registered property line. As a result, the Zorz family could no longer access their garage, and sued Attard in November, 2006.
When the case was heard, Justice Macdonald decided that the Zorz family had acquired adverse possession to the 15-inch strip of land east of the original fence line (as did the previous owners) due to their continuous, uninterrupted, open and “notorious” occupation of it for more than 11 years from their purchase in 1990 to the government’s conversion of both properties to Land Titles in 2001. As Attard’s actions were declared to constitute trespass, nuisance, invasion of privacy and interference with the Zorzes right to use and enjoy their home, the Zorzes were awarded $7500 in damages plus $7500 in costs. Attard was also ordered to replace the fence at the same location as the original fence she removed.
Thus, it is best, when purchasing, to check property boundaries on a survey. Moreover, fences should be relocated with agreement from the neighbouring owner or a court order, as taking matters into your own hands can be costly and deteriorate relations between you and your neighbour.
Download the PDF: Concepts Newsletter – Fall 2008