When Bad Fences Happen to Good Neighbours

5 Tips to Settling Fence Disputes

It’s that time of year when freehold homeowners are spending more time enjoying their backyards during notoriously short Canadian summers. However, just like summer weather, neighbour disputes – especially of the fence variety – are sure to heat up.

I know a thing or two about neighbourly relations gone sour. Although my own past neighbour disputes were generally of the “hey, can you please turn your music down?” variety, like many of you, I have also faced my fair share of fence friction.

As well, my experiences as a mediator and lawyer have provided useful insights into the evolution and resolution of my clients’ more serious neighbour disputes, which can easily lead to prolonged litigation, violence, and sometimes, even police intervention!

A typical dispute my mediation and legal clients regularly face is when one neighbour’s fence encroaches onto the other neighbour’s land. In other words, the fence is over the boundary line (what I would call a “bad fence”). In many cases, but not all, this can lead to the encroaching neighbour claiming that they, or a former owner, acquired adverse possession or possessory title (a.k.a. squatter’s rights) over the encroached-upon neighbour’s land enclosed by the bad fence. In many of these situations no one notices, or no one cares, for many years. However, should the situation change (for example, if one neighbour obtains a new survey, often in the context of planned renovations, or a new neighbour moves in), then proximity can quickly breed contempt.

Should you find yourself in any type of neighbour dispute, no matter which ‘side of the fence’ you might be on, here are five practical suggestions to settling those:

  1. Never take the law into your own hands. I can’t stress this enough! For example, if your new survey shows that your neighbour’s fence or other structure is encroaching onto your property, don’t take it upon yourself to just move it or take it down without your neighbour’s written consent. Nothing will upset your neighbour (or the judge or arbitrator who decides the inevitable lawsuit which follows) more than a self-help remedy – even if you believe you are in the right, or your neighbour is being uncooperative.
  2. Get legal advice as soon as possible. As soon as you discover that something is askew, consult a lawyer. In many situations, time is of the essence. For example, there could be a quickly approaching deadline for commencing a lawsuit to preserve your legal rights, or your neighbour is about to ignore my first suggestion above and take down the fence you wish to keep up. You need to quickly know your legal rights and the options available to you. As well, be sure to discuss with your lawyer the subject of title insurance, which you may have purchased at the same time you bought your home. It may prove valuable in such a situation. Further, consider hiring a knowledgeable lawyer who is disposed toward resolving neighbour disputes early (such as Settlement Counsel).

  1. Try to reach a resolution directly with your neighbour, to turn the heat down a bit, after obtaining legal advice. Starting a lawsuit or even sending a lawyer’s letter may sour things for good. Remember, you will likely have to live next door to this person for the foreseeable future. If you are embroiled in litigation, how will it feel to come home from work (or to work at home) every day to face an adversary in the next yard, or to be separated from them by just a thin party wall? In most cases, even divorcing spouses have more physical distance from each other. Unless there is a propensity for violence, try to calmly talk to your neighbour about the problem. However, I recommend that each of your lawyers draft in writing any agreement you in principle you might work out in order avoid future misunderstandings – and to ensure that your settlement complies with the law.
  2. Consider mediation. If a one-on-one meeting is practically impossible, or it did not have a positive outcome, discuss with your lawyer the possibility of a mediation: a settlement meeting conducted by a neutral party who is trained in helping people resolve disputes. These days, mediations can be conducted virtually (using an online platform such as Zoom). In my experience, many neighbour disputes are resolved at or soon after mediation.
  3. Consider arbitration or mediation-arbitration. Before proceeding to mediation, or if a mediation does not lead to a settlement of your dispute, consider hiring a private decision maker (arbitrator) with expertise in neighbour disputes instead of starting a court proceeding, or starting one and proceeding to trial. Arbitration can be quicker and less costly, and you get to pick the decision-maker. You and your neighbour might also consider entering into mediation-arbitration, a hybrid process where the mediator becomes the arbitrator if the dispute doesn’t settle at mediation.

If all else fails? If you are sued or have decided that you must sue, never lose sight of the following: a court proceeding (litigation) is expensive, stressful, risky and public. Litigation also has a strange way of making people more entrenched in their positions. Don’t expect that your neighbour is eventually going to get fed up and move away. Chances are that they aren’t going anywhere. The old notion that ‘a person’s home is their castle’ is apt. Therefore, you should continue to negotiate whenever possible, whether through your lawyers or at mediation.   Negotiation is not a sign of weakness; it is a sign of reason. Also consider the possibility of letting an arbitrator ultimately decide your case if you cannot settle it, as opposed to a judge.

Can’t we all just along? Why do things get so heated over a fence or property lines or light being blocked or other neighbour disputes? I talked about this in a past radio interview with Matt Galloway of CBC Metro Morning. It is my view that our home (or condo) is our sanctuary. These days, we seem to be less tolerant of our neighbours, and so we assert our rights in what we believe as our cause. While a properly placed, properly sized and municipally-compliant fence can’t make anyone good, it can’t hurt. Good fence projects can make good neighbours. And they can save you a great deal of grief, time and money.

FURTHER READING 

Neighbours in treehouse dispute could benefit from mediation, lawyer says – from CBC News, April 21, 2016

As a neutral third party, I can help you and your neighbours find solutions to settle neighbour and boundary disputes. For more information about my mediation and arbitration services*, click here.

For more information about my legal services* where I would provide advice and represent only one side of a dispute as an advocate, but still focus on a practical resolution, click here.

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

*ADR and legal services provided by Mitchell Rose Professional Corporation.

 

 

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