How to Handle a Dispute With Your Neighbour

Get comfortable with confronting conflict to keep peace in the neighbourhood

Aside for the obvious economic and social consequences of living in a pandemic, these days there seems to be a pandemic of interpersonal conflict—where we work, shop, play or live. (Drawing on my dispute resolution experience in my law and mediation practice, I even recently wrote about managing conflict in the workplace.)

The word “conflict” can conjure up a host of definitions and interpretations. When most people think about being confronted or confronting another person, they typically think about a face-to-face argument or some sort of debate where there’s a winner and a loser.  At the root of both is a problem to be solved.

Sometimes that problem (for whatever reason) is with the people who live next door. For decades, I have helped owners of freehold property in Ontario deal with their neighbour disputes: boundaries, fences, easements and rights of way, retaining walls, driveway or walkway encroachments and other types of trespass, noise, illegal gatherings, privacy and pet issues, and so on. This past year in my practice—as a lawyer and mediator—I have observed a marked increase in neighbour dispute issues. While I’ve written about this topic before, I believe it needs more attention given the volume and extremes of complaints—from the dislike of falling fruit on one side of the fence, to racial bias, or the threats from a bad neighbour brandishing a weapon. The ‘tools of war’ are becoming retaliation—higher noise volumes, broken downspouts, felled trees, or feces—and some even quickly devolving into adolescent behaviour.

Let’s unravel the area of neighbour disputes a bit further.

Let’s face it: Not everyone wants to talk to their neighbour about a potential problem. But what are the consequences of silence? Well, in the case of your neighbour wanting to build a fence, if you say or do nothing right away, you may end up with a fence you didn’t want… on your property! (Or in some cases, the neighbour may tear down your existing fence without your permission.) If you do nothing over the course of years, or a previous owner of your land did nothing, you may end up giving up some of your property to your neighbour despite what your deed and survey tell you (known as “adverse possession” or “possessory title”).

Then, there are some who are conflict-averse, refuse to have any sort of initial neighbourly communication, yet think spending a lot of money on a litigation lawyer for a cease-and-desist letter will stop the problem. And if it doesn’t, they are immediately ready to dive into a lawsuit, and to “see them in court!”

Hold on a minute!!!

I recommend taking some preliminary steps with neighbour disputes before taking any form of legal action, and certainly before going to court:

1. Get to know your neighbour

Like your family, you don’t likely have a choice who your neighbour is, so, early on, take time to introduce yourself, welcome them, and show some kindness. Try building a neighbourly rapport for the long term. It will come in handy in many ways your future.

2. Identify the problem and communicate politely

Sometimes people are not always aware that they’re doing something bothersome. Talk to them. Don’t be accusatory, which can make someone defensive and make a peaceful resolution unlikely. There is truth to the saying “you catch more flies with honey than with vinegar”. Before you take on a dispute, take a pause. Is it a one-off, or occasional annoyance? Or one that seriously and continuously interferes with your quality of life (or property)? In other words: pick your battles.

3. Log any questionable behaviour

If the offending behaviour is not a one-off and is recurring, log it in writing and/or record it (video, with sound) over a week or two so that you have a record of evidence of what, when (date/time/frequency), where and who (if known). A word of caution: while some home security devices these days may prove valuable for evidence, there are laws and by-laws establishing appropriate and inappropriate surveillance.

4. Do some research on rules and regulations

While there is no substitute for actual legal advice, first spend some time looking into your local municipal by-laws. Most municipalities have by-laws and publish ways and channels to report property problems such as: illegal residences, fences, garbage storage, pest/insect infestation, disrepair, dumping, noise, dogs off-leash, zoning contraventions, etc.

On the point of information gathering, and back to our earlier example about building a fence or repairing a dilapidated one (and the potential for a neighbour dispute about it)—here are some factors you need to consider:

• fence placement (whether a boundary fence required)
• aesthetics of the fence cost, and who should pay for it
• access to a neighbour’s property to build/repair it

However, many neighbour disputes are not governed by municipal by-laws. Common law (judge-made legal principles) and statutes (aka legislation, which in Ontario neighbour disputes usually refers to laws enacted by the Ontario legislature) often have something to say about the situation. For example:

• can you tear down an existing fence and rebuild it if it’s on your own property?
• can you destroy a fence on the boundary line if it’s shared property?
• the boundary may be in dispute because of adverse possession (aka squatter’s rights)?
• survey and surveyor issues—like whether a survey is an actual survey, and what does and doesn’t it show?
• a licensed Ontario Land Surveyor has marked and staked your property lines
• your neighbours are trespassing on your land

Bottom line… you’ll have an easier time when you approach your neighbour with context and measured facts, and if you know in advance that what you and/or your neighbour is doing might be in violation of any applicable law.

5. Ask your neighbors for input

There is strength in numbers. Maybe your neighbour is doing something that is affecting others as well. Perhaps there’s a way to huddle on a collaborative solution you can communicate in writing. And if they’re not affected by the behaviour, don’t involve them, or perhaps reconsider your position.

6. Seek third party help

Sometimes you just need a third party to assist. Depending on whether the dispute is about a breach of municipal regulations (see 4. above), a complaint could be filed with your municipality. Inspectors are sent out to investigate all complaints and they do offer remediation and/or recommendations for both sides.  And keep in mind, a visiting municipal by-law inspector might make a finding that you are in breach of a by-law, and that breach may have nothing to do with what you called to complain about. I’ve seen this happen a number of times.

Nowadays, and as a result of the pandemic, complaints into city by-law services, such as the City of Ottawa, have escalated so you may need to be patient in getting a response from a by-law enforcement officer. However, if there is a dispute, local government will not get involved in it and will recommend the parties settle privately.

Back to our fence dispute example: have you reviewed Ontario’s Line Fences Act and investigated local municipal appointment of “fence-viewers” to resolve the dispute and issue a decision? This could be a third-party solution for you depending on your situation. 

If you and your neighbour recognize the dispute is getting messy—and both sides agree—a third-party neutral, or mediator (volunteer or paid), can be brought in to get to a compromise and mutually agreeable settlement.

I am paid by clients to deal with their fence and other property-related disputes as a mediator*. I almost always recommend getting to mediation quickly!  Another dispute resolution method I’ve ramped up is mediation-arbitration (or med-arb). In med-arb, a neutral with subject expertise in both areas, uses mediation to try and bring the parties closer together and help them reach their own agreement. If there is no compromise, the parties proceed to arbitration and the mediator becomes the arbitrator who imposes a final, binding decision.

Med-Arb can save you cost and time, and there is focus on the parties who are clients and not just disputants. Another advantage is privacy and confidentiality, which you will not have with a public and open court case (known as “litigation”).

Finally, in my experience, police will usually not get involved in a neighbour dispute unless there is bodily harm (or a threat of it), or damage to property that is contrary to the Criminal Code. If you think your neighbour is trying to steal your land, they will likely decline to get involved on the basis that “it is a civil matter”.

7. When to call a lawyer

A consultation with a lawyer could be prudent, and in most cases is recommended, as part of your early upfront research stage (4. above) and prior to any actions you take.

When facts and the law are disputed, you need to call a lawyer to know your property rights or if you anticipate there are going to be problems about enforcing them.

If there are unsettled encroachment and boundary issues—and you wish to sell your house (which will affect the marketability of the property)—you may have to disclose certain information to your real estate agent and to potential purchasers—or you risk being sued later by a disgruntled buyer.

8. Stay out of court

Going to court—and even starting the lawsuit that may get you there—is a last resort. I advise against it for a lot of reasons which I outline here:

I.     Lawyers and court proceedings can become extremely costly.

II.    It’s a drain on limited court resources.

III.   It will take a long time.

IV.   It’s a public proceeding—so you will have no right to privacy.

V.    Small Claims Court offers limited remedies (up to $35k, but it cannot force anyone to do something or not do something). There is also a huge backlog of cases due to the pandemic.

VI.   The higher Superior Court may offer more remedies, but it can also be slow, and it is even more expensive. It is also difficult to represent yourself in a Superior Court case, and a paralegal cannot represent you—unlike with Small Claims Court.

VII.   A Judge’s ruling at trial may not favour either party or may feel unduly harsh. Consider these neighbour dispute cases:

a. Morland-Jones v. Taerk, 2014 ONSC 3061

The case: Neighbours with a litany of complaints, including issues about dog feces and video cameras. The plaintiffs’ grievances were important to them, but not to the judge—who found no     serious legal issues to be tried.

Topline result: In a sense, everyone lost. While the plaintiffs’ case was dismissed, each side had to bear tens of thousands of dollars in legal costs. “In my view, the parties do not need a judge; what they need is a rather stern kindergarten teacher.”- Justice E.M. Morga

b. Freedman v Cooper, 2015 ONSC 1373

The case: Two neighbours had an issue with a (damaged) tree straddling their property line; one neighbour wanted to cut it down without the consent of the other.

Topline result: This boundary tree was declared a danger and the defendant was allowed to cut it down unhindered by the plaintiff, with both neighbours sharing the cost. The defendant was then ordered to pay a portion of the plaintiff’s legal costs, which far exceeded the cost to remove the tree.

c. Duncan v. Buckles, 2020 ONSC 3219

The case: Two neighbours disputed a fence on the property line; a municipal by-law inspector advised the fence was too high, but they found no by-law infraction; one of the neighbours then complained about the other in the media and on the internet.

Topline result: The Small Claims Court found the fence was legal and did not constitute a nuisance or trespass. In a related but different Superior Court case they pursued, the neighbour who won at Small Claims Court sued the other for defamation and was awarded $70,000 in damages and $18,000 in costs.

All court cases are inherently risky. There are no slam dunks. (I know because I was a litigation lawyer for more than 20 years). Trials are also inherently public. The world will know your business and what the judge says about you.

 

Remember: Anything you find on the internet – including this blog – is not legal advice and is not a substitute for legal advice. However, even a little bit of knowledge can be powerful. My hope is this blog has helped to inform you on this topic.

 

This blog is for educational purposes only and is not intended as legal or other professional advice.

 

As a neutral third party, I can help you and your neighbours find solutions to settle neighbour and boundary disputes, and avoid the downsides of court. I’ve also prepared an excellent resource of Frequently Asked Questions you may find helpful. For more information about my mediation and arbitration services*, click here.

 

*Dispute resolution services provided by Mitchell Rose Professional Corporation.