What Happens If an RPR Shows an Encroachment in Alberta?

What Happens If an RPR Shows an Encroachment in Alberta?

Short answer: if a Real Property Report shows an encroachment in Alberta, the sale does not automatically fail — but the issue needs to be addressed before closing.

An encroachment can affect title, municipal compliance, lender approval, insurance, resale value and the buyer’s willingness to complete the purchase.

The right solution depends on what is encroaching, where it is located, who owns the affected land and what the purchase contract requires.

The important point is simple:

An encroachment on an RPR is not always a deal-breaker, but it is not something to ignore.

What Is an Encroachment?

An encroachment happens when a building, structure or improvement extends beyond where it is legally allowed to be.

In an Alberta residential real estate transaction, an encroachment may involve:

• a fence crossing onto a neighbour’s property;

• eaves extending into a utility right-of-way;

• a shed located on an easement;

• a garage built too close to a property line;

• a retaining wall on municipal land;

• a driveway extending onto another parcel;

• a deck or stairs encroaching into a setback area;

• a landscaping feature extending beyond the property boundary; or

• another improvement located partly outside the legal property or within a restricted area.

An encroachment may be small.

It may also be serious.

The legal and practical consequences depend on the facts.

What Is an RPR?

A Real Property Report, usually called an RPR, is a survey document prepared by an Alberta Land Surveyor.

It shows the location of visible improvements on the property in relation to:

• property boundaries;

• buildings;

• garages;

• decks;

• sheds;

• fences;

• driveways;

• retaining walls;

• easements;

• utility rights-of-way;

• and other visible structures or improvements.

An RPR helps identify whether the physical property matches the legal property.

That matters because a fence, garage, deck or retaining wall may look normal but still create a boundary or compliance issue.

Why Encroachments Matter

An encroachment can create several problems.

It may affect:

• whether the seller can provide what the purchase contract requires;

• whether the buyer is willing to close;

• whether the buyer’s lender will fund;

• whether municipal compliance can be obtained;

• whether a neighbour may object;

• whether a municipality may require removal;

• whether title insurance is available;

• whether the improvement can remain;

• whether the buyer can renovate or resell later; and

• whether a holdback, agreement or price adjustment is needed.

The practical rule is simple:

An encroachment should be identified, understood and resolved before possession whenever possible.

Start With the Purchase Contract

The purchase contract is the first place to look.

It may require the seller to provide:

• a current RPR;

• evidence of municipal compliance;

• documents showing encroachments are approved;

• title free from certain defects;

• or another agreed solution.

If the seller promised an RPR with compliance and the RPR shows an unresolved encroachment, the seller may need to fix or otherwise address the issue.

If the buyer agreed to accept title insurance or an existing RPR, the analysis may be different.

The key question is not only:

“Is there an encroachment?”

The better question is:

“What did the seller agree to provide, and does this encroachment prevent that?”

Encroachment Onto a Neighbour’s Land

If the encroachment is onto a neighbour’s property, the seller may need the neighbour’s cooperation.

Examples include:

• a fence over the property line;

• eaves crossing the boundary;

• a garage or shed partly on the neighbour’s land;

• a retaining wall extending onto the adjacent parcel;

• landscaping built across the boundary; or

• a driveway partly on a neighbour’s lot.

Possible solutions may include:

• moving or removing the encroaching structure;

• obtaining a written encroachment agreement;

• registering an encroachment agreement on title;

• negotiating compensation with the neighbour;

• adjusting the purchase price;

• obtaining title insurance, if acceptable;

• closing with a holdback; or

• extending closing while the issue is resolved.

Alberta Land Titles materials describe an encroachment agreement as an agreement allowing an improvement on one parcel to encroach onto an adjoining parcel, and once registered, it can run with the land in a similar way to an easement: EAS 1 – Easement / Encroachment / Party Wall Agreement.

The practical point is this:

If a neighbour’s land is affected, the neighbour may need to be part of the solution.

Encroachment Onto Municipal Land

Encroachments onto municipal land can be more complicated.

Examples may include:

• a retaining wall on municipal reserve land;

• a fence extending onto city land;

• a driveway crossing municipal property;

• landscaping on a boulevard;

• stairs or structures on road allowance;

• a shed or wall on municipal land;

• or a private structure extending into land controlled by the municipality.

A municipality may require:

• an encroachment agreement;

• a licence;

• approval;

• fees;

• modification of the structure;

• removal of the structure;

• or ongoing conditions.

The City of Calgary describes encroachments as including buildings, fences, driveways, retaining walls or other structures extending onto City lands or interests: Encroachments – The City of Calgary.

Municipal approval is not guaranteed.

The practical rule is simple:

Do not assume a municipal encroachment will be approved just because it has existed for years.

Encroachment Onto a Utility Right-of-Way

An RPR may show an improvement located on or over a utility right-of-way.

This can involve:

• eaves;

• garages;

• sheds;

• fences;

• decks;

• concrete pads;

• retaining walls;

• air conditioning units;

• landscaping structures;

• or other improvements.

A utility right-of-way may allow utility providers or municipalities access to install, repair or maintain infrastructure.

If an improvement interferes with that right, it may need approval or removal.

In Bruman v. Komarevich, 1999 ABPC 44, the court dealt with eaves extending over a utility right-of-way and found that the contractual warranty was engaged even though the encroachment was described as relatively minor.

The practical point is this:

An encroachment does not need to sit on the ground to create an issue. Overhangs can matter too.

Does Municipal Compliance Approve the Encroachment?

Not always.

Municipal compliance and encroachment approval are related, but they are not always the same thing.

A municipality may stamp or comment on an RPR for compliance with building-location requirements, but that does not necessarily mean every encroachment is approved.

For example, the City of Calgary explains that a compliance stamp addresses building-location requirements under the Land Use Bylaw and is not the same as approval of encroachments shown on the RPR: Existing encroachments – The City of Calgary.

The practical rule is simple:

Do not assume a compliance stamp solves every encroachment issue.

What If the Encroachment Is Minor?

Minor encroachments may be manageable.

Examples may include:

• a small fence deviation;

• minor eave overhang;

• a small shed corner over a setback;

• a minor landscaping encroachment;

• a technical side-yard issue;

• or another issue that can be approved, insured or resolved without major cost.

Possible solutions may include:

• a small holdback;

• seller obtaining approval;

• title insurance;

• buyer acceptance;

• a written undertaking;

• a price adjustment;

• or closing once the issue is documented.

Not every minor encroachment justifies refusing to close.

In Healey v. Slobogan, 2008 ABPC 5, a technical side-yard deficiency did not justify refusing to close where a reasonable holdback was offered.

The practical point is this:

A minor, solvable encroachment may call for a practical closing solution rather than cancellation of the deal.

What If the Encroachment Is Serious?

A serious encroachment can create a much bigger problem.

Examples may include:

• a garage partly on a neighbour’s land;

• a retaining wall on municipal land;

• a structure built over a utility right-of-way;

• an improvement that must be removed;

• an encroachment that prevents municipal compliance;

• a neighbour refusing to sign an agreement;

• a lender refusing to fund;

• a municipality refusing approval;

• or an issue that materially affects the use or value of the property.

In serious cases, possible outcomes may include:

• delayed closing;

• removal of the structure;

• negotiation of an encroachment agreement;

• a substantial holdback;

• price reduction;

• title insurance if acceptable;

• termination if legally justified;

• or litigation.

The practical rule is simple:

The seriousness of the encroachment determines how serious the closing problem is.

Can the Buyer Refuse to Close?

Possibly, but not always.

Whether a buyer can refuse to close depends on:

• the purchase contract;

• whether the seller promised a compliant RPR;

• whether municipal compliance was required;

• the nature of the encroachment;

• whether the issue affects title, use or value;

• whether the seller can cure the problem;

• whether a reasonable holdback solves the issue;

• whether title insurance is acceptable;

• whether the lender will fund;

• whether time is of the essence;

• and whether the buyer is ready to close.

A buyer should be careful before refusing to close over a minor encroachment.

If the issue can be reasonably solved, refusing to close may create risk for the buyer.

But if the encroachment is serious and unresolved, the buyer may have a stronger position.

The practical point is this:

Do not assume every encroachment lets the buyer walk away — and do not assume every encroachment must be accepted.

Can the Seller Force the Buyer to Accept Title Insurance?

Usually, not automatically.

Title insurance may be a useful solution in some RPR or encroachment disputes.

But if the contract requires the seller to provide a current RPR with municipal compliance or specific encroachment approvals, the buyer may not have to accept title insurance instead unless the contract allows it or the buyer agrees.

Title insurance is not the same as an RPR.

An RPR shows where structures are physically located. Title insurance is a policy that may respond to certain covered risks.

Whether title insurance is acceptable depends on:

• the contract;

• the buyer’s position;

• the lender’s requirements;

• the title insurer’s willingness to insure;

• the type of encroachment;

• and the risk being covered.

The practical rule is simple:

Title insurance may solve some encroachment problems, but it is not automatically a substitute for what the seller agreed to provide.

Can the Seller Fix the Encroachment Before Closing?

Sometimes.

Possible fixes include:

• removing the encroaching item;

• relocating a fence;

• moving a shed;

• altering eaves or overhangs;

• obtaining municipal approval;

• obtaining a neighbour’s encroachment agreement;

• registering an agreement on title;

• obtaining a relaxation or variance, if available;

• updating the RPR;

• or providing another contractually acceptable solution.

The feasibility depends on time, cost and cooperation from third parties.

A neighbour may refuse.

A municipality may take time.

A utility provider may not consent.

A contractor may not be available before closing.

The practical point is this:

Some encroachments can be fixed quickly. Others cannot be solved before possession without an extension or holdback.

What Is a Holdback?

A holdback is money withheld from the seller’s sale proceeds until a problem is resolved.

For an encroachment, a holdback may be used where:

• approval is pending;

• an updated RPR is needed;

• municipal compliance is outstanding;

• an encroachment agreement must be obtained;

• removal work must be completed;

• the cost to fix the issue is uncertain;

• or the parties agree to close before the issue is fully resolved.

A holdback should be clear and in writing.

It should address:

• how much is held back;

• who holds the money;

• what must be done;

• who is responsible for doing it;

• who pays for removal, approval or registration;

• what happens if approval is refused;

• when funds are released;

• and what happens if costs exceed the holdback.

The practical rule is simple:

A vague holdback can create a second dispute after closing.

What If the Seller Did Not Disclose the Encroachment?

If the seller knew about the encroachment and failed to disclose it, additional issues may arise.

The buyer may ask:

• Did the seller know about the encroachment?

• Did the seller have an old RPR showing it?

• Did a neighbour or municipality previously complain?

• Was an encroachment agreement refused?

• Did the seller represent the property was compliant?

• Did the seller provide an outdated RPR?

• Was the issue hidden until closing?

• Did the seller’s silence create a misleading impression?

In Baker v. Warshawski, 2010 ABQB 219, the sellers knew about an encroachment and the neighbouring owners’ refusal to sign an agreement. The court found that failing to disclose those facts created a misleading impression and supported rescission before the contract was fully performed.

The practical point is this:

Known encroachment problems should be disclosed and addressed clearly.

What If the Encroachment Is Discovered After Closing?

If the encroachment is discovered after closing, the buyer’s options depend on the contract, the RPR, the seller’s representations and the available evidence.

The buyer may need to consider:

• whether the seller breached a contractual warranty;

• whether the seller provided an inaccurate RPR;

• whether the seller knew about the issue;

• whether municipal compliance was represented;

• whether the buyer relied on inaccurate information;

• whether title insurance responds;

• whether a neighbour or municipality is demanding removal;

• and what losses have been caused.

Possible remedies may include:

• a claim for damages;

• repair or relocation costs;

• removal costs;

• compensation for reduced value;

• a claim under title insurance;

• or negotiation with the affected neighbour or municipality.

The practical rule is simple:

After closing, evidence becomes critical.

What If a Neighbour Objects After Closing?

A neighbour may object if an improvement encroaches onto their property.

Possible outcomes may include:

• negotiation of an encroachment agreement;

• payment of compensation;

• removal or relocation of the improvement;

• a boundary adjustment, if available;

• court proceedings;

• or a claim against the seller, depending on the contract and disclosure.

Alberta courts can consider remedies involving encroachments, including removal, easements, acquisition of land or compensation, depending on the circumstances. In Buchanan v Stankovic, 2025 ABKB 457, the court discussed possible relief under Alberta’s Law of Property Act in an encroachment dispute.

The practical point is this:

A small encroachment can become expensive if the affected owner refuses to accept it.

What If the Municipality Orders Removal?

A municipality may require removal of an encroaching structure, especially if it affects municipal land, reserve land, road allowance or a utility interest.

The age of the encroachment may not solve the problem.

In Dustan v Calgary (City), 2025 ABLCSAB 3, a retaining wall encroached onto City reserve land and a City utility right-of-way. The Board confirmed the removal order and explained that the age of the encroachment did not override the applicable municipal bylaw.

The practical rule is simple:

Long-standing does not always mean lawful.

What Should Sellers Do?

If you are selling and your RPR shows an encroachment, deal with it early.

Practical steps include:

• review the purchase contract;

• determine exactly where the encroachment is;

• identify whether it affects a neighbour, municipality or utility right-of-way;

• check whether approval already exists;

• locate any old encroachment agreements;

• contact the municipality if needed;

• obtain legal advice before promising a solution;

• consider whether title insurance is realistic;

• consider whether a holdback is needed;

• disclose the issue clearly; and

• document any agreement with the buyer in writing.

The practical point is this:

The worst time to discover an encroachment is right before possession.

What Should Buyers Do?

If you are buying and the RPR shows an encroachment, do not ignore it.

Practical steps include:

• review the RPR carefully;

• compare it to the property as viewed;

• ask what the encroachment affects;

• confirm whether municipal compliance was provided;

• ask whether approval or an agreement exists;

• confirm whether the lender accepts the issue;

• ask whether title insurance is being proposed;

• consider whether the encroachment affects use or future resale;

• request a holdback, repair, approval or agreement if needed;

• and avoid accepting vague assurances.

The practical rule is simple:

Before closing, understand whether the encroachment is approved, insurable, removable or a continuing risk.

Common Mistakes to Avoid

There are several common mistakes buyers and sellers make with encroachments.

Do not assume the RPR issue is minor. Small-looking encroachments can create title, municipal or neighbour problems.

Do not assume municipal compliance approves encroachments. Compliance and encroachment approval may be different.

Do not assume title insurance solves everything. It depends on the policy, lender and contract.

Do not wait until closing week. Encroachment agreements and municipal approvals take time.

Do not rely on verbal assurances. Encroachment solutions should be documented in writing.

Do not assume the buyer must accept the issue. The contract and seriousness of the encroachment matter.

Do not assume the seller can fix it instantly. Third-party consent may be required.

What This Means Practically

Three rules are worth remembering.

An encroachment is not automatically a deal-breaker. Many encroachments can be resolved with approval, an agreement, title insurance, removal, a holdback or a price adjustment.

The affected land matters. An encroachment onto a neighbour’s land, municipal land or a utility right-of-way may require different solutions.

The contract controls the closing issue. Whether the seller must fix the encroachment, whether the buyer must accept a workaround and whether closing can proceed all depend on the purchase agreement and the facts.

Speak With an Alberta Real Estate Lawyer

If an RPR shows an encroachment in Alberta, the issue should be reviewed before closing.

A proper review should consider:

• the purchase contract;

• the RPR;

• municipal compliance;

• whether the encroachment affects a neighbour, municipality or utility right-of-way;

• whether an encroachment agreement exists;

• whether approval is available;

• whether title insurance is acceptable;

• whether the buyer’s lender will fund;

• whether a holdback is appropriate;

• whether the encroachment must be removed; and

• whether the issue is serious enough to delay or affect closing.

This article provides general information about RPR encroachments in Alberta real estate transactions. The legal result depends on the purchase contract, the nature of the encroachment and the available evidence.

Berjak Law

10080 Jasper Avenue, Suite 301
Edmonton, Alberta

780-879-0200