In Toronto, where residential real estate prices will have gone up again by the time you finish reading this article, it is understandable that the homeowners who are fortunate enough to have yards would want to maximize their use. For many, this will mean putting up a fence or making changes to an existing fence.
If you were to ask the average person where a fence between two properties should go, you would probably hear something along the lines of ‘along the property line.’ In most cases, neighbouring property owners will be able to agree between themselves as to where the fence should be located, and will be able to avoid disputes with respect to matters like fence materials, height and cost.
In the event that a dispute arises, one of the neighbours can refer the dispute to a public official called a fence-viewer. Fence-viewers are appointed by the municipality pursuant to the Line Fences Act to arbitrate fence-related disputes between neighbouring property owners. The fence-viewers have the power to, among other things, visit the property, view the area where the fence is proposed to be built and interview the property owners and their witnesses under oath.
Once this has been done, the fence-viewers are required to make a decision as to where the fence is to be located, the materials to be used in the construction of the fence or reconstruction, the date by which the fence construction is to be completed, and the cost of the fence proceedings and construction. In this last regard, the cost of a boundary fence is typically divided evenly between the neighbouring property owners. The fence-viewer may either order that each owner is required to build a designated half of the fence or that one of the owners is to build the entire fence but is entitled to half of the costs from the other owner. If the other owner does not pay his or her half, it could be added to their property taxes.
Occasionally, a question will arise as to whether a fence is on the property line, or whether the fence encroaches onto another property. This issue particularly arises either when a fence is constructed by one neighbour without the other’s input, or when a fence is old enough that previous owners constructed it. In circumstances like these, if a survey shows that the fence that one neighbour has built encroaches onto another’s property, there could be a basis for making a court claim for trespass. If successful, the trespass claimant may obtain an award of monetary damages. There could also be an order that the encroaching fence be moved or removed.
Not all claims for trespass like this will be successful, however. One way to defend a trespass claim is by establishing adverse possession, which says that someone who does not have paper title to property can obtain legal title if the person possesses it for a certain period of time and other criteria are met. This is similar to the concept of “squatter’s rights.” In these circumstances, adverse possession can sometimes be established if the fence in question has been in place for a sufficient period of time, and that the owner of the property encroached upon has been excluded from his or her property during that period.
Overall, if you are a property owner who wishes to put up a fence, you will be best-served by coming to an agreement with your neighbour as to the location and construction of the fence. However, if your neighbour is uncooperative and you are unable to mend fences (so to speak), you do have options to get the fence built. After that, only time will tell whether a good fence will make the uncooperative person next door into a good neighbour.
Timothy Duggan is a condominium lawyer and civil litigator with Horlick Levitt Di Lella LLP. Reasonable Doubt appears on Mondays. You can contact him on Twitter at @timmyd_ and tell him what you would like to read about in future columns.
A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer. The views expressed in this article do not necessarily reflect those of Horlick Levitt Di Lella LLP or the lawyers of Horlick Levitt Di Lella LLP.
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