I’ve devoted much of my legal career to attempting to demystify the law for people. To convince them that lawyers don’t hold all the secrets to the black letter law arts, and that everyone can read and interpret the law - though getting a lawyer’s advice is always helpful.
But there are unfortunately some areas of law that are a lot more impenetrable than others, usually because of two factors:
- the amount of time the area of law has been in existence;
- a lack of legislative codification.
Meaning 500 years of cumulative law is a lot more difficult to figure out than 50 years of law, and a well organized 500 pages of law that has been recently refined by the legislature is much easier to deal with than 50 separate statutes passed over the last 100 years
Real property law unfortunately falls into the just really complicated category of law that’s been around a very long time, and is spread over an awful lot of statutes. It’s especially too bad for it to be so complicated, as a very large number of Canadians will have reason to be involved with it over the course of their lifetimes in buying or selling property, as compared to other more niche areas of the law which might be easier to figure out, but where few people will ever need to understand them.
I find disputes over real property all too common, and they tend to take on a nasty tinge that only neighbours who aren’t related to each other, but are still stuck coexisting side by side, seem to be able to develop for each other. Perhaps it's the helpless feeling of being stuck next to someone, and perhaps even seeing them every day, but not being able to interact with them to resolve the issues involved.
Some of these disputes can be resolved without going to court, though I find some lawyer involvement is usually necessary to figure out what each party's rights truly are. Occasionally only a court can sort out who has which real property right, and what's the appropriate remedy to enforce those rights.
Here are my top five things to never do in a property dispute.
1. Lack evidence
In almost any legal dispute, the burden of proof is on the party making the argument for the remedy. So if you think you have a right to cross your neighbour’s backyard in order to get to your garage because all owners of your property for the past 40 years continuously have been doing just that, you better be sure of your evidence. Knowing you’re right, and being able to prove it, are not the same thing.
2. Fail to get a survey
It's easy to think you know where the boundaries of your land are. But do you really?
Just because you think the property line is where the fence is, if you don’t have a recent survey prepared by a licensed surveyor, you need to get one done. Surveys are endlessly useful, not just in establishing boundaries, but also for determining where easements sit, how far an encroachment cuts into your property, or just generally as an aid to later selling your house because buyers can have confidence in knowing exactly what they are buying.
3. Fail to get a title search
It's also easy to think that you have absolute ownership over your property, but in fact none of us does other than the Crown. At best, we own “fee simple” which still means Crown title underlies our land (thus making things like expropriation possible). And sometimes there could be all sorts of other rights or charges registered on our land that we don’t know about.
Only an up to date and probing title search, carried back sufficiently in time (rather than just looking at the last transaction) will truly tell you about the rights hovering over (and under) your property.
4. Fail to make a title insurance claim
Title insurance is increasingly common, and could pay all your legal fees or damages if you wind up with a previously unknown title problem to your land after you’ve closed a purchase for which you bought residential or commercial title insurance at the same time.
There's a lot of paper produced at the time you buy real property, so it's understandable you might not have poked into that thick reporting package envelope your real estate lawyer sent you all those months or years ago. But go take a look.
You might discover a few pages mentioning that you did indeed agree to buy a policy from one of the major providers like First Canadian Title or Stewart Title. There's no guarantee (like any insurance policy) that they'll cover your loss, but there is no downside to making a claim.
My personal experience is that sometimes you'll get coverage, and sometimes you won't, with the results really depending on your factual situation as compared to the wording of your policy. It's often helpful to retain a lawyer to assist you in making a claim because of the complexity of property law, but it's not required.
5. Fail to get legal advice prior to acting
A couple of hours of legal advice from a lawyer is a bargain compared with the dozens or even hundreds of hours that can be burned through in a court case if you proceed to do something on your land that it later turns out you had no right to do, like block a laneway, cut down trees, or erect a fence.
I offer you this suggestion not out of self-interest - I make more off court cases than I do legal opinions - but rather because of the unfortunate real property difficulties I see people get themselves into time and time again, that can be very costly to dig out of, and that are completely avoidable with a little advice.