2.5 Encroachments

Standard

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

1. is permitted by a written agreement of the adjoiner, and any mortgagee if required; or
2. 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

Notes

1. See Standard 1.5 – Documentation of Advice and Instruction

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, s. 74-75;  Standard 3.3 – Prescriptive Rights

Approved by Council on November 22, 2002. Standard reviewed by Committee on December 11, 2019. No changes required.