Tieback, Crane Swing and Encroachment Agreements Explained

With increasing land development projects in the Greater Toronto Area, property owners are frequently approached by developers seeking to enter into agreements for tiebacks, crane swings, or encroachments. These agreements may sometimes be consolidated into a single contract. Typically, property owners are offered monetary compensation as consideration for granting such permissions. Before entering into these agreements, it is crucial for property owners to consult an experienced real estate lawyer to ensure their rights are protected and their compensation is maximized.

What are tiebacks?

Tiebacks are structural elements used in construction, particularly during excavation and shoring, to provide lateral support to retaining walls or excavation support systems. They are typically long, high-strength steel rods or cables that are drilled into the ground at an angle and anchored into stable soil or rock behind the area being excavated. Their purpose is to counteract the horizontal forces exerted by soil and water pressure, preventing the collapse or inward movement of the excavation wall. Tiebacks are especially common in urban developments where deep excavations are performed adjacent to existing buildings, sidewalks, or property lines. Because tiebacks often extend beneath neighbouring properties, developers are legally required to obtain a tieback agreement or easement from the adjoining property owner. This agreement sets out the terms under which the developer is allowed to drill into the neighbouring land, addresses compensation, indemnity, access, and restoration obligations, and protects both parties from liability during and after construction.

What is a Tieback Agreement?

A tieback agreement is a legal contract between a developer (or property owner undertaking construction) and the owner of an adjoining property, allowing the developer to install underground structural supports—called tiebacks—beneath the neighbouring land. These supports are usually necessary when deep excavations are required for construction projects, such as the foundation of a high-rise or underground parking structure. Since tiebacks often extend beyond the property line and anchor into the soil of an adjacent parcel, they constitute a form of encroachment or easement, and cannot be legally installed without the adjoining owner’s express consent. A properly drafted tieback agreement will typically include: a legal description of the encroachment, technical specifications of the tiebacks, the duration of the easement, access rights during installation, compensation or consideration (if any), indemnification provisions, insurance requirements, and obligations for post-construction restoration or remediation. These agreements are often registered on title as easements to ensure enforceability and transparency for future purchasers. Without such an agreement, a developer may face legal challenges including trespass, injunctions, or damages from the neighbouring property owner.

What is a Crane Swing Agreement?

A crane swing agreement is a legal contract that permits a developer or construction company to allow the boom or arm of a tower crane to temporarily swing over a neighbouring property during construction activities. Because the airspace above a property is legally considered part of the property owner’s rights, any unauthorized intrusion—even by a crane arm passing overhead—is considered a trespass. A crane swing agreement sets out the terms under which this temporary encroachment is permitted. It typically includes provisions such as: the duration of the crane swing operations, a precise description of the area being over-sailed, insurance and indemnification requirements, safety and operational protocols, compensation to the property owner (if applicable), and conditions for terminating the agreement. The agreement also protects the property owner from liability arising from crane operations and may require the developer to indemnify the owner for any damages or disruptions caused by the crane. In many cases, especially for large developments in dense urban areas, municipalities may also require evidence of such agreements before issuing building permits. Without a crane swing agreement in place, a developer risks serious legal consequences, including injunctions to stop construction and claims for trespass damages.

What is an Encroachment Agreement?

An encroachment agreement is a legal contract between a property owner (or a developer) and a neighbouring property owner or a municipal authority that permits a structure or improvement to extend beyond the legal boundaries of the owner’s property onto adjoining land. Encroachments can be permanent, such as parts of a building, underground structures, fences, retaining walls, or tiebacks, or temporary, such as scaffolding or construction-related overhangs. Without formal consent, any such encroachment would constitute a trespass, giving the neighbouring owner the right to seek removal, damages, or an injunction. An encroachment agreement sets out the specific terms under which the encroachment is permitted, including the description and extent of the encroachment, the duration (whether temporary or permanent), compensation (if any), insurance and indemnification obligations, maintenance responsibilities, and the rights and obligations of the parties if the encroachment needs to be removed in the future

Are Homeowners Obligated to Enter Such Agreements?

Homeowners are not legally required to enter into tieback, crane swing, or encroachment agreements when approached by developers. These agreements are voluntary and based entirely on the consent of the adjoining property owner. In Ontario, property rights include not only the land itself but also the subsurface and airspace above it. As a result, any intrusion, whether it’s a tieback installed beneath the ground or a crane arm swinging overhead, constitutes a trespass if done without the property owner’s express permission.

When a developer seeks permission to encroach onto a neighbouring property for construction purposes, the homeowner is under no obligation to agree. They are fully entitled to decline the request or negotiate terms that reflect the inconvenience, risk, and potential liability involved. In practice, homeowners often hold significant negotiating leverage. Developers typically need these agreements to proceed with construction as designed, and any refusal can result in costly delays or force a redesign of the project. This gives homeowners the opportunity to negotiate compensation, impose safety and restoration conditions, and require indemnity and insurance protections before granting access.

It’s also important to note that these agreements may involve temporary access (such as during crane operation) or permanent structural encroachments (such as tiebacks). For that reason, homeowners should consider not only the short-term disruption but also the long-term implications of allowing such an easement. For example, the presence of underground tiebacks may impact future development or excavation plans on their own property.

Before entering into any agreement, homeowners should seek independent legal advice and consider engaging an engineer to review the construction plans. A properly drafted agreement will address scope, duration, insurance coverage, access protocols, liability, and compensation. Without such protections in place, a property owner may be exposed to unforeseen risks and costs.

In summary, homeowners have complete discretion over whether to grant these types of construction easements. While they are common in urban developments, there is no legal compulsion to enter into such agreements, and any decision should be based on a clear understanding of the legal and practical implications.

How Much Compensation Are Property Owners Entitled To?

There is no fixed or statutory amount of compensation that a property owner is entitled to when entering into a tieback, crane swing, or encroachment agreement in Ontario. The amount is entirely negotiable and depends on several factors, including the nature and extent of the encroachment, the duration, the level of potential disruption, and the local market conditions. Generally, permanent encroachments, such as tiebacks that remain underground indefinitely, warrant higher compensation than temporary ones like crane swings, which typically only last during the construction period and do not physically impact the property.

The duration of use is another important factor: short-term encroachments may result in a lump-sum payment or a modest monthly fee, whereas long-term or permanent easements often command a larger one-time payment, sometimes tied to the market value of the affected land. In cities like Toronto, compensation tends to be higher due to the density of construction and the value of land. It is common for homeowners to negotiate compensation amounts ranging from $5,000 to $25,000, but in cases involving significant impact or urgency on the part of the developer, six-figure settlements are not unheard of.

Additional factors that influence compensation include the inconvenience caused to the homeowner, potential risks associated with the construction, and any legal and engineering costs the homeowner incurs, which are often covered by the developer. Property owners may also suffer limitations on future use or development of their land, especially if permanent tiebacks are installed, and this loss should be reflected in the compensation negotiated. Some homeowners use precedent agreements in the same area as leverage to support their demands.

Ultimately, property owners are entitled to negotiate compensation that fairly reflects the use of their land and the risks and inconveniences involved. Since developers usually require these agreements to proceed with their projects, homeowners are generally in a strong negotiating position and should seek legal advice to ensure they are fully protected. Although compensation can vary significantly, well-negotiated agreements in urban Ontario developments often fall between $10,000 and $50,000 or more, depending on the circumstances.

An experienced real estate or business lawyer can assess the specific circumstances of your case to ensure you receive fair and adequate compensation.

Should You Cooperate with the Developer or Refuse Their Request?

When deciding whether to enter into a tieback, crane swing, or encroachment agreement with a developer, homeowners must carefully weigh their options. While it may be tempting to immediately refuse or give the developer a hard time in hopes of extracting a higher compensation offer, this strategy can sometimes backfire or create unnecessary hostility. In many cases, negotiating and entering into a properly structured agreement is the smarter approach. By doing so, homeowners can secure significant compensation, protect their property through strong legal safeguards, and maintain control over the construction activities affecting their land. Giving a developer a hard time without a clear strategy may delay their project and frustrate them, but unless handled carefully, it may also reduce goodwill and make negotiations more difficult. Instead, homeowners should assertively, but professionally, negotiate terms that ensure adequate insurance, indemnification, compensation, and restoration obligations. If the developer is unwilling to meet reasonable conditions, the homeowner can always refuse consent. Ultimately, the decision should be based on a risk-reward analysis, not emotion. Working with a knowledgeable lawyer and possibly an engineer ensures that the homeowner’s rights are fully protected, whether they choose to cooperate or take a firmer stance.

Contact Us

If you have been approached by a developer to enter into a tieback, crane swing, or encroachment agreement, do not sign the agreement without consulting an experienced lawyer. Contact Jahanshahi Business Law Firm today for a free consultation and let us protect your interests while maximizing your compensation.

Disclaimer:

The information contained in this article is not to be construed as legal advice. The content is drafted and published only for the purpose of providing the public with general information regarding various real estate and business law topics. For legal advice, please contact us.

About the Author:

Shahriar Jahanshahi is the founder and principal lawyer at Jahanshahi Law Firm with a practice focus on representing business star-ups and investors in the province of Ontario. For further information about Shahriar Jahanshahi, click here.