Post by: Craig Robson
In Ontario, before a condominium can register, the lands must be registered in “Land Titles Absolute” or “Land Titles Plus”. These are the highest categories of title available under the Land Titles Act. Most Ontario lands continue to be “Land Titles Conversion Qualified”. The “Conversion Qualified” category has qualifiers that do not apply to the “Absolute” and “Plus” categories, including the qualifier that “Conversion Qualified” lands are subject to “any title or lien that, by possession or improvements, the owner or person interested in any adjoining land has acquired to or in respect of the land”.
The application to convert requires a title search by the project lawyer and a boundary survey by the project surveyor. The boundary survey is circulated to the neighbouring land owners with a warning that if they do nothing the boundary shown on the survey will be certified as the true boundary of their property. If a neighbour does not agree with the boundary, then the neighbour can object to the application.
In greenfield developments there are usually far fewer boundary issues than exist in built up areas. In built up areas, very often fences are constructed “off boundary”, sheds encroach and significant use has been made of the proposed condominium property by neighbours. If the property has been vacant for some time, this use can be significant and long standing.
It is important to respond to neighbour’s objections in a principled fashion to minimize potential for delays in the conversion process, which if lengthy can also delay condominium registration.
For more on options for responding to objections to your LTA conversion application, check out our earlier blog article here: “Responding to Objections to an Application to Convert to LTA”.
Post by: Craig Robson
What are your options if an objection is made to your application to convert lands to Land Titles Absolute?
As a starting point, you should always conduct a careful review of the materials that support the objection. They may on their face show insufficient time has passed to give the encroachment the status it needs to defeat your title. If this is brought to the attention of the neighbour, they may withdraw their objection.
If a review of the materials is inconclusive, then as a second step you may decide to conduct a sub-search of title of the neighbouring land and seek any other evidence you can find through discussions with other neighbours, building permit records, Google Earth searches and the like to try to prove the encroachment has not been in place for the requisite 10 years before the lands went into Land Titles Qualified.
You might also choose to acknowledge the claim if it does not affect the integrity of your development and convey the encroached lands to the neighbor. Depending on the circumstances, you may need a severance consent from the Committee of Adjustment and it should be kept in mind that this can be both time consuming and expensive.
Another option is to attempt to negotiate a settlement of the objection with the neighbour. This approach has the benefit of allowing for all manner of compromise resolutions to be found, but typically only works if both sides are prepared to act reasonably.
You can also try to “go around” the neighbour. That is, if you don’t need the land in question to be in the condominium, then the survey boundary can be adjusted to exclude the area in dispute.
If all else fails, then the Land Registrar can be asked to convene a hearing to rule on the claim or you can apply for a Court order that the claim is without merit.