Are you wondering how to deal with fence disputes with neighbours? Disagreements over property borderlines are common the world over, and conflicts between neighbours frequently become nasty and long-drawn-out battles between folks who likely started as friends or at least friendly acquaintances living next to each other. 

But friendly neighbours quickly become vengeful foes when a fence or property line dispute arises and dealing with disagreeable neighbours is often left up to a judge when the lawsuits start flying. It was the poet Robert Frost who famously wrote that “good fences make good neighbours,” so it stands to reason that bad fences make bad neighbours.

If you need a lawyer to help you, have a look at this one.

If you want to speak to a Realtor.

Fight over the property line

Indeed, encroaching fences and property line disputes are certainly nothing new but dealing with them in court or otherwise can be time-consuming, costly, and ultimately dissatisfying for all those involved. After all, unless you or they plan to move once the disagreements are settled, the neighbour who built the bad fence or the one complaining about your perfectly good fence will still live right next door and will likely still stew in resentment over the whole ordeal. 

Before you take some kind of action to deal with the boundary dispute (without consent), you should get legal advice. You don’t want to spend $10,000 to replace an existing fence, and then get a court order to take it down. If you build on the neighbour’s property, and they don’t like it, then you are in trouble. It’s better to pay a lawyer $700 first for some legal advice.

Provincial property laws about encroachments

Under British Columbia’s Property Law Act, landowners can apply to the Supreme Court if a land survey finds that any building or fence wrongly crosses a property line. The court can impose a timeline for the owner who built the offending structure to compensate the adjoining landowner, grants an easement allowing the structure or fence to remain, or order its removal.  

In Ontario, though, the province has a piece of legislation known as the Line Fences Act, which specifically outlines a procedure to resolve certain disputes between neighbours about boundary fences dividing adjoining properties. It only applies to fences along property boundary lines, and falls under the provincial Ministry of Agriculture, Food and Rural Affairs in the province’s unincorporated or “unorganized territories.” 

The Ontario Line Fences Act only comes into play when neighbours can’t agree about whether to build a fence along a property’s boundary line or if a fence has already been built and one owner thinks it needs to be fixed or replaced. Cities in Ontario can appoint referee “fence viewers” to arbitrate disputes and make award decisions. 

Getting the by-law officers involved in adverse possession

The fence viewers, three of whom are needed to make a determination,  are installed by municipalities and must have “broad knowledge of the community.” They can decide how much one owner is responsible for a fence versus another, and can also decide on what type of fence needs to be built. In addition, they can order costs from each of the owners involved in the dispute after a “viewing” and determination.  

However, the Line Fences Act doesn’t apply if a property owner has already built a fence and wants their neighbour to split the costs after it’s done. The arbitration procedure set out in the Ontario legislation also doesn’t settle disputes about property boundaries, which have to be settled between the conflicting landowners.

Fence-viewing referees aren’t given jurisdiction to deal with property line disputes by the act, so if the disagreement involves property lines and not just a fence, homeowners are out of luck using the Line Fences Act’s simplified and cheaper dispute resolution process.

Fence disputes with neighbours

Here is a useful video about how to use adverse possession.

According to the provincial government’s website, many landowners try and get cities to step in and resolve property line disputes without having to pay lawyers and land surveyors. Once a decision is made by the fence viewers appointed under the act, an owner who doesn’t like the decision can appeal within 15 days for a fee, which is $352 in 2022. 

Ontario cities, however, can opt out of the Line Fences Act with their own by-laws and assign all costs associated with line fencing disputes to the parties involved. But fence-related conflicts that aren’t covered by the act can often end up in small claims court. For example, in August 2021, CTV News reported on a fence dispute lawsuit in Brampton, Ontario. The report stated that two homeowners were “locked in a bitter dispute” over the cost of a new fence that separates their properties. 

One owner, the story said, decided to tear down an old fence and build a new one and bill his neighbours for half the cost, which they refused to pay. Having moved to the city only a few years earlier, they claimed they couldn’t financially handle the cost of the new fence. Despite having discussions in the past about building a new one, they reportedly never came to an agreement.

Homeowners wanting to build a new fence

The neighbour then tore down the old fence and built a new one, landing the landowners in small claims court to argue over costs. The neighbour who built the fence retained legal help and claimed they did in fact agree to spend $5,000 on the fence and a pair of gates. It’s unclear how the case was resolved, but the CTV News story quoted a real estate lawyer saying it’s best to avoid going to court and for owners to just sit down and work it out. 

Read more about the law:

• Is it legal for your employer to watch what you do?
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But simply sitting down with a hostile neighbour and working things out is perhaps easier said than done, and what are somewhat routine and predictable conflicts between neighbours can spiral out of control. Take the case of an Ontario woman named Tina Duncan. 

Duncan had bought a home in Aurora, Ontario in 2017, and had built a fence on the property line between her home and the home of a woman named Marnee Buckles. The neighbouring home was just eight inches from the property line, and Buckles claimed the fence was too high and blocked the views from her home’s windows. 

Get legal advice regarding a boundary dispute

Buckles went to the municipality with her concerns, but city inspectors didn’t find any by-law violations, though they said the fence was too high. Duncan, for her part, fixed the height of the fence but that didn’t satisfy her aggrieved neighbour. When the town allowed the fence to remain, Buckles complained publicly online and to local newspapers. She also enlisted the help of a man named Robert Lepp, a self-described “municipal activist,” to help her get the fence removed. 

But Lepp’s help seems to have done more harm than good, since he also took to the internet to complain about Duncan and the fence, making blog posts and videos and starting a petition to have the fence removed. Buckles also lost a bid in the province’s small claims court for damages for nuisance and trespass over her neighbour’s fence. 

In turn, Duncan threatened legal action of her own for libel and slander over the pair’s online campaign against her. While Buckles took down Facebook posts about Duncan, Robert Lepp’s online campaign persisted. After filing a defamation lawsuit against Buckles and Lepp, Duncan won a default judgment against Lepp for failing to file a defence of the action. 

Find out where the neighbour’s property line is

The judge found for Duncan, claiming Lepp had defamed her by falsely claiming she had intentionally acted in an illegal fashion and had been given preferential treatment by city officials due to her connection to local politics. Lepp was dinged for $50,000 in general damages, $10,000 for “high-handed and oppressive” conduct and $10,000 in punitive damages over the “malicious” online postings. 

In addition to the $70,000 damages award, the judge ordered Lepp to remove online postings and YouTube videos about Duncan and the fence, while ordering that he “permanently refrain from publishing” anything about Duncan “on any online platform.” Lepp reportedly appealed the decision and also ended up suing the Toronto Star for defamation over a columnist’s coverage of the case. 

He didn’t have a lawyer and sued the Star and its publisher for $5,000 in small claims court for an allegedly defamatory column written by a columnist who was also a real estate lawyer. Lepp claimed the column was defamatory because it identified the wrong location for the original defamation trial, said he had “interfered” in the fence dispute, inaccurately described the fence’s location as being on the property line, and several other claims.

Study adverse possession

But the judge was unconvinced. The column getting the location of the trial wrong had nothing to do with Lepp’s character and was of “no consequence since the law in Ontario is the same” no matter which courthouse hears a matter.  Moreover, the use of the word “interfered” was not defamatory to Lepp when the column was read as a whole. The article in the Star, the judge found, made it “abundantly clear” that Lepp had been helping Buckles in the fence dispute rather than “interloping.” 

However, one sentence in the column that the judge found may have been defamatory “on its face” was about how Lepp had made “numerous negative and disparaging comments” online about Duncan. While it portrayed him as a man “who recklessly and unlawfully smeared a person on social media,” the judge found the column was both fair and accurate in its summation of the original defamation case decision. 

Despite having “defamatory elements,” the judge wouldn’t grant Lepp a trial against the Star or its publisher. The column, the judge found, was published with “both absolute and qualified” privilege for papers like the Star to report on court proceedings, such as a judge’s decision, “which unfortunately was not very flattering towards Mr. Lepp.” 

Dealing with fence disputes with neighbours’ conclusion

Sometimes disputes can arise because you want your side of the fence to be rot-proof, but your neighbour doesn’t want to paint it. If their side rots, then it will rot your side too.

You should be familiar with the term adverse possession. Basically, this means that if you build something on your neighbour’s land, and it’s there for long enough, that part of the property can become yours.

Conflicts between neighbours are likely as numerous as they are predictable. The conflict bred by living in close quarters with others whose interests and desires differ from your own can be expected as part of living in increasingly densified communities.

Provincial governments and city governments have passed laws to deal with fence disputes and property disputes in general, yet they almost universally recommend dealing with problems between individual property owners rather than involving the state or the courts.

Before getting engaged with neighbour disputes, make sure to find out from a law firm about your legal rights. You will want a lawyer to check with the land titles office located at the local municipality.

While bitterness and resentment can surely boil over and necessitate third parties to step in and solve such conflicts, it’s clear from the case law that good faith and reasonable communication will always be less costly and time-consuming than lengthy and expensive litigation. 

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