There are a few problems that real estate agents should notice without being told.
Look at this brick fence! Just exactly where is it?
Does it show on the survey?
You will notice that it runs along the front of the house and also down the sides.
However, at a certain point in time, we are completely on municipal property. The road allowance is 66 feet wide in Ontario, absolutely everywhere, not just this street. The paved or travelled portion of the roadway consists of two 11 foot lanes, for a total of 22 feet. That leaves another 44 feet leftover, which is usually divided evenly on either side.
Does that brick fence running in front of the house look like it’s back by 22 feet? How about the brick fence running down to the road; is it 22 feet back?
What should a Listing Agent do in the circumstances?
- Ask for a Survey of the property?
- Ask to see the Building Location Survey?
- Ask to see the Encroachment Agreement with the Municipality?
All of the above would be good initial steps, but each one of them may not add any real value.
The Survey of the property itself was undertaken at the time of the subdivision. So, there were no buildings, let alone a brick fence.
The Building location survey was likely undertaken shortly after the foundation was poured or set in place. The builder didn’t want to proceed with the rest of the house if there were already a problem.
The Encroachment Agreement assumes that the municipality knows about it. The Building Inspector likely signed off on the building a year or two before the two brick fences were erected. This was a location where there were no sidewalks constructed by the municipality, otherwise the problem would have been quickly identified.
So, whose fence is it anyways?
- It doesn’t sit on the lot,
- It’s entirely on municipal property (front fence),
- It’s partially on municipal property (side fence).
Who’s responsible for repair if it’s damaged?
What if it’s damaged by a fire truck, snow plow or garbage truck?
Who’s liable, if it deteriorates and someone trips and falls over it?
What about insurance, will the homeowner’s insurance cover this? After all, this fence isn’t even on their property?
If the municipality removed it, would this be covered by title insurance? Remember again, it’s not on the homeowner’s property?
Is this fence secured by the mortgage registered against the property?
So, this actual fact situation is not as unusual as one might think. It happens all the time. Municipalities frequently are simply unaware of the encroachment, so they let it go.
It certainly is an issue for the Listing Agent.
Then, the Buyer’s Agent is obligated to figure this out too!
Brian Madigan LL.B., Broker