A long-running dispute between neighbours over a strip of land just 21.9 centimetres wide ended in court after years of litigation and 10 affidavits.

In Margaritis v. Milne, the Ontario Superior Court of Justice ruled on whether the doctrine of adverse possession applied, ultimately granting the land to one neighbour based on lasting improvements made under the belief it was their property.

Negotiations fail over small property encroachment

Milne bought his property in 1996, while Margaritis inherited his in 2017. A wooden fence and stone retaining wall marked the boundary between their properties. After his purchase, Milne made extensive changes, including building a new fence and retaining wall.

When Margaritis planned to redesign his backyard, a survey revealed a small encroachment from Milne’s property. Negotiations failed, leading to the lawsuit.

Cannot claim adverse possession

Milne claimed the land through adverse possession, which requires 10 years of exclusive use. However, Margaritis argued that Milne had moved the fence line to its current location in 1996, while Milne maintained that he re-built the fence on the pre-existing fence line.

It was found that both properties were converted to Ontario’s Land Titles system in 2002, and registered land in the system can’t be obtained by adverse possession unless that 10-year period took place prior to registration. Milne’s use didn’t meet the 10-year requirement before this time.

The court couldn’t confirm where the boundary was before the 1996 renovations, as Milne was unable to provide surveys, plans, permits or engineering drawings showing the work done. So, his claim to title under adverse possession was denied.

Milne obtains land because of honest belief it was his

Despite rejecting the adverse possession claim, the court awarded Milne the land because he made lasting improvements, like the retaining wall and stairs, believing it was his. This decision was supported by section 37 of the Ontario Conveyancing and Law of Property Act, which allows a person to retain land if they made improvements under an honest belief it was theirs.

The court found Milne’s belief genuine and the improvements lasting and substantial. Changing the boundary now would require significant modifications to Milne’s property, plus the boundary existed for more than 20 years without complaint. As well, granting the disputed area to Margaritis would require significant renovations to Milne’s backyard to add an “objectively insignificant area” to Margaritis’ property — no compelling reason arose as to why Margaritis required the strip of land.

So, Milne was granted the land but had to compensate Margaritis for its value. The exact compensation method is yet to be determined. An appeal was dismissed, as the Divisional Court upheld the original decision, agreeing that the improvements were lasting and that the judge had exercised appropriate discretion.