Choose title insurance firm carefully

Defendants in fence dispute feel abandoned.
It's important for buyers to have survey.
A court case wending its way through the judicial system underlines just how important it is for homebuyers to have a current survey and to choose a title insurance company very carefully.

In November, 1998, Susan and David purchased their house at an address, which I will call 2 Auckland Ave., Toronto.

Next door to the north is 4 Auckland, a house bought by Mir and Leda in September, 2001. The backyards of both properties are 5.71 meters (18.73 feet) deep from the house to the rear lot line. Separating the two backyards is a fence, which was built before either neighbour moved in.

One of the issues in the lawsuit brought by Susan and David is whether the fence is in the wrong position, and whose land it is on.

In a statement of claim issued last year, Susan and David claim that the division fence is not on the property line, but rather about 0.57 m (1.87 feet) onto the property owned by Mir and Leda.

(The case has not gone to trial, and none of the allegations of either party has been proved in court.)

The result is a strip of land almost 2 feet wide by almost 19 feet deep to which Mir and Leda have paper title, but which appears to be part of the backyard of their neighbours at 2 Auckland.

Susan and David are asking the court to declare that they have ownership of the strip of land because they and the previous owners of the house have had exclusive possession of the strip for more than 10 years.

Invoking the legal doctrine of possessory title, commonly known as squatter's rights, they claim that Mir and Leda no longer own the disputed strip because it was openly and exclusively occupied by the owners of 2 Auckland for more than 10 years.

Complicating matters is the fact that in 2001, Susan and David constructed a covered porch at the rear of their house, and part of it sits on the disputed strip.

In their defence, Mir and Leda deny that their neighbours have possessory rights to the strip and counterclaimed for trespass.

They say that when they bought 4 Auckland, they received a standard form "declaration of possession" from the previous owners, certifying that there were no known boundary disputes.


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