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Articles in this section are of general information and in every situation are subject to the application and interpretation of a law, rule or factual situation that may differ. Consult us for any specific question.

Key Neighbourhood Issues

6 February 2019

Two-thirds of Canadians own a building, whether it is a house, a condo, a chalet, a farm, etc. Real estate is an area where it is relatively safe to invest, because of its stability and tangibility, as opposed to the stock market, for example.

However, every property owner inevitably has neighbours, no matter how far away they may be! We therefore devote this article to identifying the main legal problems that a landowner may encounter with their neighbours and to identifying possible solutions.

Property limits: the fence

It is natural for landowners to demarcate their property. Since time immemorial, individuals, tribes, villages and countries have sought to mark the boundaries of their properties, whether by a natural boundary, such as a mountain or a river, or by a man-made structure: a fence or a wall.

Thus, the law allows any owner “to enclose his land at his own expense, to surround it with walls, ditches, hedges or any fence.”

Of course, fencing your property can be a costly process. It may also seem unfair to you to assume all the costs when your neighbour will benefit as much as you will. For this purpose, the law offers a solution: the owner may also “require his neighbour to make 1/2 of or share the cost of making a fence which is suited to the situation and use made of the premises.”

However, you cannot, on your own initiative and without first obtaining the consent of your neighbour, build a common fence at your own expense and subsequently demand that the costs be shared. You must first give your neighbour formal notice to agree with you on the construction of a fence on the dividing line between your properties. The agreement must include the type of fence, cost sharing and maintenance of said structure.

If the neighbour refuses, you will have to go to court, which will then decide on the usefulness of such a fence and determine the terms of installation, cost sharing and maintenance.

Another point to be verified before the work begins are the municipal by-laws. In most municipalities, there is a bylaw that determines fence heights, the type of construction permitted and various other conditions. These conditions may differ from one municipality to another, so it is best to check with your municipality.

Contact us for more information on determining the boundaries of your property.

Encroachments

Most encroachments result from the lack of clear boundaries between two adjacent buildings.

An encroachment can come in many forms, including the following.

It may be your neighbour walking on your property without authorization or blowing snow in the direction of your home. The latter cases are more commonly referred to as neighbourhood disturbances.

It can also be the branches of your neighbour’s tree that bother you, damage your roof or prevent your garden from growing. In the case of trees, specific rules are provided for in the law. Under no circumstances can an owner cut branches from a neighbour’s tree that are “advancing” on their property without the authorization of their neighbour. If they are not authorized or if the neighbour attempts to cut them on their own, the owner must go to the court to have the neighbour cut them if they pose a “serious nuisance.” It must be an issue of real and certain gravity.

Another case of encroachment is that of constructions or plantations made on the neighbouring land. In legal terms, this refers to the rules of real estate acquisition. Generally, it is expected that the owner of a building will acquire, by accession, ownership of the constructions, structures or plantations that have been made to their property. However, depending on whether the expenses are necessary (e.g., to prevent damage from being caused), useful (which increases the value of the building) or recreational (for convenience, for pleasure), and whether the neighbour who made these constructions or plantations really believed to be on their own property or not, the owner could be forced to pay compensation to his neighbour, or force them to buy part of their land.

Contact a lawyer in case of encroachment.

Right of way

Unless the law provides otherwise, you cannot trespass on the neighbouring property. Whether you cross over on foot, by bike, by car or other means, whether or not it actually bothers the neighbour or not, the rule is the same for everyone! However, the law allows you the right of way in certain cases, such as if you are landlocked, i.e., you have no access to the public road.

When a lot is landlocked, the owner of the lot is entitled to demand a right of way from an adjoining lot. So, when the area is identified, the most natural passage must be sought, taking into account the state of the land, the advantage of the landlocked area and the inconveniences that the passage causes to the area that is affected.

The owner of the landlocked land is obliged to pay compensation in proportion to the damage caused by the establishment of the passageway and its use. Likewise, they must make and maintain all the necessary installations to ensure that their right is exercised in the least damaging conditions for the land affected by it.

This right of way may also be terminated when it is no longer necessary for the use or exploitation of the land.

Another case where a landlord can force their neighbour to grant access to their property is when it is necessary to carry out work. Any owner, after having received a notice to this effect, must allow their neighbour access to the property in order to be able to build or maintain a structure or plantation on their own property. It is understood that access to the neighbour’s land must be necessary, i.e., it must be the only possible option to allow the work to be carried out.

In return, the neighbour who suffers the inconvenience of having to provide access to the other will be entitled to compensation for any damage they suffer, as well as complete restoration of the premises.

Therefore, in addition to the cases mentioned in the law, in order to access the neighbour’s property, the permission of the owner is required. Verbal or unofficial permission will be valid as long as both parties remain in good standing. However, the right of way may be attached to the building and transferred from one owner to another. This is called a right of way, and is published in the land registry and is permanent in nature. The parties are then required to strictly comply with their rights and obligations as provided for in the deed of servitude.

Acquisitive prescription

Acquisitive prescription is a means of becoming the owner of a building solely by the passage of time. Thus, if you occupy and use a parcel of land for more than 10 years, as the owner would, in a peaceful, continuous, public and unequivocal manner, you could apply to be officially recognized as the owner of that parcel of land. In this case, constant possession of a building takes precedence over official title deeds, because a prudent and diligent owner is expected to protect his or her right of ownership.

Be well informed, keep an eye on your property and be sure to clarify ambiguous situations with your neighbours. It is nice to be a good neighbour, but tolerance to avoid conflict can cause you to lose some of your rights.

Consult your lawyer for more advice.

Neighbourhood disturbances

The concept of neighbourhood disturbance is very broad and in fact stems from a positive obligation that applies to all property owners: the obligation to tolerate “normal inconveniences” that do not exceed the “limits of tolerance”, depending on all the circumstances.

For example, it is not against the law to have pets, smoke, listen to music or cook, or to have a bonfire in your backyard (when the municipality allows it). However, it is possible that there may be some degree of exaggeration and that this could be called a neighbourhood disturbance. Thus, even the person who is “within their rights” can violate their obligation to be a good neighbour.

This obligation is intimately linked to the obligation of good faith that applies to everyone at all times.

Conclusion

We hope that the above information has been useful to you, but remember that the information provided should not be used as a substitute for independent legal advice! Consult your lawyer at the outset of a neighbourhood problem or if you would like more information.

Book an appointment with your lawyer.