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Whenever you engage an Ontario Land Surveyor (OLS), you are asking for a legal opinion as to the location of a boundary or boundary corner. We must conduct a title research at the land registry office to obtain the best possible information available for not only your property but often the adjoining ones, depending on the nature of the work. This information is given to a survey crew to allow them to do their work on site. Just because we find a monument at the corner in question does not mean it is in the correct position. The crew would validate its position by tying into enough adjoining survey evidence (e.g. monuments) to confirm that its location makes sense in comparison to existing Plan data. Furthermore, our crews are trained to recognize other forms of survey evidence; such as, fencing, retaining walls, old building corners, etc., that may prove to be important in the re-establishment and/or confirmation of a boundary. In many instances the monument is long gone and careful consideration must be given in its re-establishment. The field crew applies the legislation under the Surveys Act and the embedded legal principles in making their decisions with oversight by the OLS. Our job is often not to necessarily reset a monument to where it was theoretically supposed to have been set based on the underlying Plan’s published angles and distances but rather to restore it to where it was originally planted. While this may seem counter-intuitive, there is a well established set of legal principles that protect a property owner’s boundaries by giving the most weight to boundary evidence least likely to be misunderstood by a layperson. Legal descriptions of ownership often describe a boundary as following the edge of a lake. In its simplest form, this boundary is readily located and understood by owners on the ground and is given the highest weight by the courts. Original survey monuments, planted to mark boundary corners are readily understood by owners to mark their property corners despite any discrepancies found when comparison or survey measurements to Plan data arise. Original monuments govern and therefore are given a heavy weighting by courts. While there appears to be no shortage of persons conducting illegal surveys for owners to “save money”, you risk legal actions by others for engaging a non-OLS to perform this type of work. Pursuant to section 11 of the Surveyors Act of Ontario only an OLS may perform these functions.
We get lots of these calls every year and we advise people in this situation to try and first work with the adjoining owner to have the monument re-established by an OLS. We often act as mediators between parties in these situations and typically they would share costs for the work involved. When an adjoining owner is uncooperative and refuses to be part of a solution, we often advise you to file a police incident report to capture the event. While the removal of a survey monument is an offense under the Criminal Code of Canada, it has been our experience that it is very hard to prosecute someone. This can be done either in tandem with — or in place of — involving a solicitor who will work to protect your interests. The hard reality is that in many instances one party gets stuck ‘footing the bill’ for the replacement of survey monuments that wind up benefiting both owners.
I just noticed a survey crew digging a hole in my front lawn but I have not ordered a survey. Are they allowed to do this?
The short answer is “yes.” Since our work involves a legal survey which retraces the boundaries and boundary markers, we have statutory protection from prosecution for trespassing under the Surveys Act of Ontario. Having unfettered access to adjoining properties — and often parcels distant — from the lands under survey, it is critical for us to be able to perform our legal duties (see FAQ #1 above). We do make every effort, especially in urban areas, to advise property owners of our presence as a courtesy.
The Planning Act of Ontario sets out rules from which planning authorities govern how and when land can be subdivided. In addition to this, many other government bodies have oversight into the planning process and must give their approval as well. The best places to start are often either at the local municipal office or a local surveying firm to get a sense of what can, or can’t, be done. The steps can be broadly broken down as follows:
- prepare an application for Consent to Sever which often entails a re-zoning application;
- engage an Ontario Land Surveyor to prepare a Reference Plan of Survey to satisfy Consent conditions;
- engage any other parties, such as the local health department for septic beds or a well driller (where applicable) to satisfy other Consent conditions, and
- engage a lawyer when it is time to sell the property.