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Planning & Building Safety Department





Encroachments

What is an encroachment?

An encroachment means any type of vegetation, man-made object or item of personal property of a person which exists wholly upon, or extends from a person’s premises onto, public lands.

 

Why do we care?

The matter of public property being used as private property (either knowingly or unknowingly) is of particular concern to the City.  Both the home owner and the City could be held jointly liable for actions that occur on the property.  The City of Brandon takes safety seriously and has the responsibility to protect the tax payers from any financial implications of a potential litigation as well as to protect its parks, open space/greenspace and public reserves to ensure that they are used and enjoyed by all residents as originally intended and developed. 

We recognize and appreciate all maintenance and clearing of debris efforts by our residents, as our crews can’t be everywhere at once.  It is a display of pride for our community which is encouraged.  However, any use beyond maintenance is a concern. Some examples of risks would be trip and fall incidents, flammables in sheds, falls from play structures, fires in fire pits, barbeques, activities with alcohol consumption, etc.

 

If I take care of it, why can't I use it?

Maintenance and lawn care is up to the individual property owner.  Should a resident wish to see an area maintained more than the City of Brandon maintenance schedule will allow, it is reasonable for property owners to do so as long safe practices are being followed.  However, this is not the same as erecting a shed, fence or fire pit as it does not constitute ownership and liability on both parties will still apply.   

 

What are the zoning By-law definitions?

Parks and Recreation Zone: Provides for sites for public and private parks and recreation purposes.  This includes indoor and outdoor natural and human made amenities, as well as undeveloped lands that contribute positively to the human and natural environment.

Open Space Use: Provides for the conservation of publicly owned sites with physical development limitations or scenic beauty, to be retained in an undeveloped state; privately owned sites used for utility right-of-ways, and other uses with an open space character; and sites serving to buffer different types of uses.

 

What is the City's policy on encroachments?

When the Property Section becomes aware of the existence of an encroachment that extends beyond a resident’s private property boundaries onto a public road right-of-way, a public property such as a park or other City owned land, authorization through an Encroachment Agreement is required from the City to protect its interests.

The property owner may submit a written request to the Property Section for the encroachment to be reviewed by the City.

If upon review the City has no objections to the encroachment, the property owner shall enter into an Encroachment Agreement with the City to allow the continuation of the existing encroachment for a period not exceeding the life of the structure and pay all required fees, inclusive of a one-time administration fee.

If the City has objections to the encroachment, the property owner shall remove the encroaching structure within a reasonable timeframe and repair and renew all portions of the right-of-way, public property or City owned land which may at any time be damaged, to the satisfaction of the City at the cost of the property owner solely.  If the property owner does not comply with the removal of the encroaching structure, the City may complete the work and add all costs to taxes pursuant to The Municipal Act.

Applicants requesting a new structure to be constructed intentionally encroaching onto a public road right-of-way, a public property or other City owned land shall submit a written request and site plan inclusive of measurements for the encroachment to the Property Section for review and consideration, with the final decision to be solely at the discretion of Administration with an appeal to Council as a general business item.

If a survey or Building Location Certificate prepared by a Manitoba Land Surveyor is not available to confirm the exact encroachment measurements, the Property Section shall use its best efforts to calculate said encroachment.

If at any point a structure that is covered under an Encroachment Agreement with the City is removed, evidence of its removal shall be submitted to the Property Section.  Once the Property Section confirms that the encroaching structure has been removed, and all terms of the Encroachment Agreement have been satisfied, the City shall undertake to void the Encroachment Agreement and all future annual fees.

The City will generally support right-of-way encroachments in the downtown area of the City where the architectural character of the area is being complimented and/or retained, and recognizing that a large number of commercial properties have been built at property line.

Once authorized by the City, an encroachment may continue to be used but the encroachment shall not be added to, rebuilt or structurally altered except:

  1. as may be necessary to remove the encroachment; or
  2. as may be necessary for the routine maintenance of the encroachment.

If the structure benefitting from the encroachment is damaged or destroyed by fire or from any other means, and/or the structure sustains material damage (as determined within the absolute discretion of the City), the property owner covenants and agrees that the structure be removed from the City owned land completely, and if reconstructed, be placed wholly within the property lines of the property owner, with reconstruction to be in accordance with then existing by-laws and regulations of the City of Brandon.

 

What if the encroachment existed before I bought this house?

Awareness of property lines when buying or selling your home is important.  Anencroachment is tied to the lands and follows ownership of the property, regardless of how long it has been there or who placed it there.  Being knowledgeable of where your property lines are located will avoid unknowingly placing items outside of your property or inheriting an existing encroachment.

 

How much does an encroachment cost?

If a written request for an encroachment is approved, the following calculation is used when determining the annual encroachment fee for an encroaching item/structure:

  1. Find Gross Assessed Value of LAND only (not the buildings);
  2. Divide it by the Square Footage of the Lot (private property);
  3. This equals the Price Per Square Foot;
  4. Calculate the square footage of the area that the structure is encroaching (length x width);
  5. Multiply this area by the Price Per Square Foot as calculated above;
  6. Total equals the yearly encroachment fee.

The minimum is $75.00 and the maximum is $500.00 (2015) and will be billed annually on the property owner’s tax bill.  These values are subject to increases under the City’s Fee Schedule.

 

When will further assessments occur?

Pro-active assessments of encroachments will be completed by the City every 2-3 years, or when awareness of potential concerns are brought forward.

 

Additional Information

Sidewalk Patios: Sidewalk patios or café’s must obtain approval annually.  A site plan is required to be submitted with measurements for review, and if approved, a License Agreement and fee applies.  Please contact our Property Department at (204) 729-2144 for more information.

Manitoba Land Surveyor: Only a Manitoba Land Surveyor has the legal authority and expertise to properly define the legal boundaries of a parcel of land either on the ground or on paper.

Title Insurance: Title insurance provides coverage for losses related to title fraud, survey issues, problems with the title and challenges to the ownership of your home.

Building Permits: Building permits are required for all permanent structures.  Fences do not require a permit as long as they meet the height requirements under the Zoning By-law.  A Manitoba Land Surveyor can be called to locate your property pins or they can survey and pin your property if the pins can’t be located or have been misplaced.  There is a fee for their services.  Contact our Planning, Property and Buildings Department at (204) 729-2110 for further information regarding building permits.

Crossing/Driveway Permits: Permits are required for any work being contemplated in a City right-of-way or lane.  For safety reasons, the work may also require a temporary road closure.  Contact our Engineering Department at (204) 729-2220 for further information.

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