› Flat Chat Strata Forum › By-laws and outlaws › New neighbour removing fence in land grab › Current Page
This is a tricky situation and one that I am not certain that you, as the Owner of Lot A will achieve an outcome that you are hoping for.
Both you and your neighbour have an exclusive use right to the common property. The boundaries of this exclusive use grant of common property have been recognised in the CMS and the Registered Plan.
Did your due diligence when you were purchasing your Lot and reviewing the Registered Plan reveal that you were purchasing a property where the fence did not reflect the boundary line?
There appears to have been undisputed usage of Lot B’s exclusive use area for a period of time via some sort of personal arrangement between the two adjoining properties. That personal arrangement was never formalised in a way that gave it any legitimacy under the Act.
It may have suited the owners at that time but that arrangement did not automatically continue on when the Lot’s changed ownership i.e. the arrangement did not ‘follow the land’.
Undisputed usage does not of itself entitle you to a recorded grant of exclusive use. It has been determined in several Tribunal decisions that the usage of an area, even on a continuing basis and for a long period of time, is not sufficient to acquire exclusive use rights and is not evidence in itself that a valid grant has been made.
It has also been held in several Tribunal decisions that whether or not the Body Corporate or individual owners paid for any works relating to any of the exclusive use areas is of limited evidentiary value in determining exclusive use rights.
If you want to acquire formal exclusive use of part of your neighbours exclusive use area then there is a process that you would need to go through.
You would need to submit a motion to a general meeting to record a new CMS which amends the existing exclusive use By-law.
This would probably involve the Registrar of Titles requiring a survey plan to be prepared to identify the new exclusive use area.
A motion proposing this expansion of the exclusive use allocation to you from a portion of your neighbour’s exclusive use area would require a resolution without dissent. Your neighbour will obviously object and therefore the motion will not pass.
If a motion was submitted and did not pass, you could potentially challenge that decision if you were able to assert that the opposition of your neighbour to the motion was unreasonable in the circumstances.
You have stated that the arrangement has been in place for 7 years (fence) and 10 years (slab) and you were querying whether acquiescence may help your case. I do not believe that acquiescence will be applicable in this situation where another person’s right to the full usage of their exclusive use is being impacted.
Boundaries are quite different from fences. The location of fences do not always represent the legal boundary of a Lot.
The owners of Lot B cannot ‘encroach’ on their own exclusive use. The owners of Lot B were within their rights to erect a fence (the type of fence being apparently subject to BC approval) within any portion of their exclusive use area to suit their particular needs. The erection of a fence within their own exclusive use boundary does not mean that the boundary has changed.
Another avenue that you may be considering is ‘adverse possession’. The time frame does not fit within the definition of ‘adverse possession’. The relatively short time frame and the fact that ‘adverse possession’ refers to the acquisition of ownership of the land rather than to exclusive use would probably negate this argument too.
Unfortunately it may not be good news for you.