Does it make sense for neighbours to spend tens of thousands of dollars on legal fees over what a judge described as an insignificant piece of disputed land along the shared boundary?
Donald Milne and Theodosius Margaritis own adjacent houses on Pears Ave. in central Toronto.
After Milne bought his property in 1996 he redesigned the back yard. He built stairs, a retaining wall, a gate, a raised concrete parking pad and a new fence between the two adjacent yards.
The rebuilt fence incorporated about 21.5 square feet of his neighbour’s property. No-one disputed the boundary until 2017 when Margaritis, in preparation for redesigning his own back yard, commissioned a survey of the property which revealed the encroachment.
His wife approached Milne about making alterations to the gate, stairs and fence to reflect the deeded property line. Relations between the neighbours worsened when Margaritis removed parts of the fence against Milne’s wishes.
The parties wound up in court before Justice Michael Dineen earlier this year.
The disputed strip of land is almost 60 feet long but very thin – never wider than 8.6 inches and often much thinner than that.
After hearing all the evidence, the judge was unable to make any reliable determination of where the boundary was before the 1996 renovations.
He found that Milne sincerely intended to respect the existing indications of the boundary line, and that he had no intention of making a “land grab.” The judge believed, however, that the 1996 renovations may have moved the effective boundary by “a very small margin to the west.”
An old tree straddling the boundary line had been removed, and the 1996 work, according to the judge, “does not give the appearance that a straight and simple fence line was followed.” Milne himself referred to the concrete pour for the car pad around the former location of the tree as a “zig zag mess.”
Milne’s lawsuit was based on section 37 of the Conveyancing and Law of Property Act. It says that where a person makes lasting improvements on land under the belief that it belongs to him or her, a judge may order that the person may retain the encroaching land “according as may under all circumstances of the case be most just,” making compensation for the land as the court directs.
Justice Dineen ruled that the balance of convenience strongly favoured allowing Milne to keep the disputed area. Forcing him to remove the encroachments would require him to do “extensive work to undo the renovations he did in the honest belief that he was respecting the existing property line.”
The judge ruled that Margaritis was entitled to compensation for the land Milne was allowed to retain. Each party had to pay his own costs.
Margaritis appealed the decision to a three-judge panel of the Divisional Court on October 1. The court upheld the trial judge’s decision, noting his comment that the disputed parcel of land was “an objectively insignificant area.”
Margaritis will receive the value of the land, but has to pay Milne $7,500 in costs, plus his own legal fees.
Milne v. Margaritis, 2023 ONSC 1375 (CanLII), <https://canlii.ca/t/jvwjh>
Margaritis v.Milne, 2023 ONSC 5943 (CanLII), <https://canlii.ca/t/k0qqn> appeal