What is the test for determining whether an encroaching party was aware of the location of the property lines before the encroachment became an issue?
British Columbia, Canada
The following excerpt is from Watson v. Charlton, 2016 BCSC 664 (CanLII):
The first component of the test is whether the encroaching party was aware of the location of the property lines before the encroachment became an issue. Included in this is an assessment of the plaintiff’s knowledge, including whether an honest belief, negligence or fraud influenced his actions. In some circumstances, negligence will not preclude the encroaching party from a remedy where that party had an honest belief that the improvements on their land were with the property boundary. see: Gainer v. Widsten, 2006 BCCA 580.
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