Tierney Stauffer LLP Lawyers

Buying a house is a major life step, a significant financial investment. Most people buy a home in the hopes that once they settle into their new neighbourhood, they’ll be staying put for several years. However, this can be made difficult in situations when tensions develop between neighbours. Fencing issues are one of the most common topics of disputes between neighbours. Many people make incorrect assumptions about shared fences, such as assuming both parties are equally responsible for covering the cost of a fence in all cases.

These incorrect assumptions can lead a person to take action in construction or repairing a fence before they understand the implications, which can then cause a rift between neighbours when they disagree over financial or property line matters.

A recent news article highlights the problems that can arise when one neighbour takes action without ensuring their neighbour is on board. Before you make changes to a fence or construct a new one, it’s important to be aware of the restrictions and rules that apply. Below, we’ll review homeowner obligations with respect to fences, and provide tips on preventing fencing disputes before they arise.

Brampton Neighbours Facing Litigation Over Upgraded Fence

This issue arose when one neighbour (AN) decided he wanted to replace an existing fence between his property and that of his neighbour (ME). He had previously mentioned his wish to tear the existing fence down and construct a new one to ME, but according to ME, she and her husband had never agreed to the change. ME spoke with CTV news after the dispute between the neighbours became a matter for litigation, which is heading to small claims court for resolution.

According to ME, she and her husband moved into their home four years ago. In the time they’ve lived in the house, AN has mentioned his desire to build a new fence between their properties a few times. ME said that she and her husband weren’t in a financial position to contribute to the cost of a new fence, so they never agreed to do so. Eventually, in the summer of 2020, AN took matters into his own hands by tearing the old fence down and constructing a new one. AN then approached ME and her husband for reimbursement for ‘their share’ of the new fence. When they refused, AN engaged the services of a paralegal to serve ME and her husband with a statement of claim seeking general damages totalling $5,000.

This type of situation is unfortunately all too common between neighbours, compounded by the fact that many people have a misunderstanding of the law when it comes to fences. Some assume that since the fence is shared, each homeowner will be required to cover half the cost, however, this is not necessarily the case.

Who Is Obligated to Pay for a Fence?

There are two primary factors that will determine who is responsible for paying for a new fence or repairs to an existing one.

1. Location

A fence can be located on one side of a property line, or directly on the line itself. If one person chooses to build a fence, and their neighbour does not consent to pay for a portion, they should construct the fence entirely within their side of the property line to avoid a dispute. If a fence is located directly on the property line, neither party can make a unilateral change to the fence without the consent of their neighbour.

2. Type of fence

Even if the parties agree to construct a shared fence on the property line, there may be a dispute as to the kind of fence they choose. One person may simply wish to create a barrier for pets or children and would be fine with a simple chainlink fence. However, the other person might want something more esthetically pleasing, or something that offers more privacy, such as a wooden fence. The party wanting a simpler fence cannot be compelled to pay for half of a more elaborate option. In such a case, the neighbours should agree to split the cost of a basic fence, with the neighbour who wants the wooden fence absorbing the additional cost.

Ontario Fence Disputes Governed by the Line Fences Act

When neighbours cannot agree, disputes over fences that are designed to mark the boundary of a property are generally governed by the Line Fences Act. The Act provides an arbitration option for neighbours who disagree in two specific situations:

  1. Where no fence currently exists at the boundary between the two properties, and one owner wants a new fence to be constructed to mark the boundary.
  2. Where a line fence already exists, and one owner believes that it needs to be reconstructed or repaired.

Notably, this process is only applicable to fences that are intended to mark the boundary between two properties. Under the Act, a municipality will designate a ‘fence viewer’ to assess the situation and issue a decision on the matter. Decisions will be limited to the following issues:

  • the apportionment of responsibility for the fencing work between the two adjoining owners
  • the description of the fence that is to be constructed or reconstructed on the boundary line, including the materials to be used

If the work has already been completed, as in the case described above, the Act will not apply and the parties will need to either settle the matter between themselves or head to court.

Key Issues to Keep in Mind

Engaging in a long-term dispute with an otherwise good neighbour is something to be avoided if at all possible. These types of disputes can fester and make the living situation uncomfortable or even untenable for the parties. For this reason, it’s very important to ensure all parties are on the same page prior to taking any significant steps towards erecting, rebuilding, or repairing a shared fence. If there is a dispute about whether the fence is on the property line, or within one neighbour’s property, you can obtain a survey from the local Land Titles Office to determine where the line lies.

Keep in mind as well that nobody is legally required to erect a fence between properties, and so one neighbour cannot force another to pay for half a fence if they make a unilateral decision to construct one. Further, you can’t force a neighbour to pay for half of an expensive fencing option if they prefer to go with a less expensive option.

When parties do agree to share the costs of repairing or constructing a shared fence, the terms of the agreement should be put in writing, to ensure all parties are on the same page. In the case above, the neighbour who is seeking damages will need to rely on recollections of verbal conversations to be successful in court. However, if he had a signed agreement with ME and her husband, his position would be much easier to prove in court.

Residential Real Estate Lawyers in Ottawa and Arnprior Representing Clients Across Ontario

At Tierney Stauffer LLP, our real estate lawyers have over 70 years of combined experience representing clients in the purchase, sale or mortgage of a property. We provide our clients with timely service that is cost-effective and personalized. Whether it is the purchase of your first house, the sale of a condo, or refinancing a property, our residential real estate team is ready to assist. Call us at 1-888-799-8057 or contact us online to set up a consultation with an experienced real estate lawyer.

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