It is not uncommon for buildings to be separated by joint works, such as a wall, a fence, a ditch or a hedge.
A joint work is one that separates two contiguous properties and is owned jointly by both owners.
Like the rest of your property, this joint work requires maintenance. It is very important to be aware of your rights and obligations in such a situation. Otherwise, one misstep could lead to a quarrel between neighbours! And any lawyer will tell you that a dispute between neighbours is not a good thing!
Fortunately, the Civil Code of Quebec is very useful and informative about the rules governing co-ownership. This text outlines the main rules, to ensure you know your rights.
The right to fence
An important rule of property law is that any landowner can fence off their land at their own expense, as they wish. This is known as the “right to fence”. Of course, this general right is broadly governed by municipal by-laws.
The landowner can therefore decide to erect their fence, hedge or wall in different locations:
- on their own property;
- on their own property, but abutting the dividing line;
- on the dividing line.
Anyone who erects a structure intended to close off their land, at a significant distance from the dividing line, runs the risk that, over time, the dividing line will appear to correspond to the place where the structure was erected. The neighbour or their successors could in fact claim ownership of the parcel of land beyond the structure through the mechanism of acquisitive prescription.
A person who erects a partition on their own property, at the junction of the dividing line, exposes themself to the risk that their neighbour will force them to sell the co-ownership of the wall and the land to them, so that the wall becomes a joint wall.
On the other hand, an owner may oblige their neighbour to contribute half the cost of a fence erected along the property line between the two properties. However, a neighbour may not require a fence to be erected which does not correspond to the use of the premises or which is exorbitantly expensive. In case of disagreement, the type of fence and the sharing of costs must be determined by the court before construction begins. Therefore, one cannot erect the fence and file a claim after the fact, even if a formal notice has been issued beforehand. Such recourse is impractical: it is quite possible that the legal costs involved will exceed half of the cost of the fence!
It should also be noted that the law creates a presumption of joint ownership for everything on the dividing line. Consequently, if one or the other contiguous owners cannot show that they are the sole owner of the fence, it will be concluded that there is joint ownership.
Joint ownership is a form of undivided co-ownership.
Since a joint work belongs to both owners, the rules of undivided co-ownership apply. You can read more about this in an article we wrote previously, available here.
All decisions concerning a joint work must therefore be made jointly by the co-owners. Decisions concerning the adjoining property may, for example, relate to the repair or replacement of the work. Under the rules of co-ownership, this means that decisions must be made by a majority vote., decisions must be made unanimously.
Clearly, this can lead to impasses, as one party may want to proceed with repairs while the other party does not. It is important to remember that each owner is responsible for paying their share of the costs.
Urgent repairs can be made by one party and claimed from the other, but only to the extent that there is a genuine emergency and the repair was necessary to safeguard the joint work. Again, in the event of disagreement, it is not permissible to take justice into one’s own hands by proceeding with the proposed repair. Rather, one must apply to the court prior to undertaking any work and the court will decide the matter based on all the circumstances.
Some specific features pertaining to the common wall
The law allows each owner to build against a common wall and install beams and joists as required. However, this must be done with the agreement of the other party. In case of disagreement, the person who wants to build will have to go to court, which will have to determine how the proposed construction will affect the other owner’s rights as little as possible.
If an owner wants to build over the wall to make it higher, they must assume the costs and pay one-sixth of the cost as compensation to the other party. In the event that the wall cannot support the construction and the owner still wants to raise it, they may rebuild the entire wall at their own expense. However, any additional thickness must be added on their side of the wall. The new part of the wall belongs to the owner who built it. The neighbour who did not contribute can always acquire co-ownership at a later date by reimbursing half of the construction costs and the compensation received. They must also pay half of the value of the land used if the wall had to be rebuilt thicker to support the new height.
On the other hand, an owner who does not use the common wall may abandon their right and free themselves from their obligation to contribute to the expenses by filing a notice with the Bureau de la publicité des droits, a copy of which must also be sent to the other owners.
How do you resolve a conflict related to a joint work?
Issues related to joint works are often frustrating because they rarely warrant going to court. Indeed, many remedies become unnecessary, since they cost more than they are worth. For this reason, it is important to seek consensus and other means of dispute resolution, such as mediation, in order to reach a mutually satisfactory solution for both owners. If necessary, independent legal counsel is also warranted. Ultimately, keep in mind that maintaining good neighbourly relations also comes at a price.