Real Estate
2.5 Encroachments
When a lawyer examines relevant and available information on the extent of title to a parcel, the lawyer should assess material encroachments on another parcel, or on the parcel being examined, and review the assessment with the client.
The lawyer should ensure that the encroachment
- is permitted by a written agreement of the adjoiner, and any mortgagee if required; or
- qualifies, to the satisfaction of the lawyer exercising professional judgment, for the application of the doctrine of prescription.
A lawyer must explain the encroachment to the client and confirm the client’s instructions prior to closing.1
Note:
Additional Resources:
- Easement or right of way as overriding interest:Land Registration Act, S.N.S. 2001, c. 6, s. 73(1)(e) and Marketable Titles Act, S.N.S. 1995-96, c. 9, s. 7(1)(e)
- Prescriptive rights: Land Registration Act, S.N.S. 2001, c. 6, ss. 74 and 75. See also Standard 3.3 - Prescriptive Rights