Is Your Fence on the Boundary?

Posted on: Tuesday, August 27th, 2013

This handout is meant to address the relevant legislation and action that can be taken in order to resolve disputes relating to boundary fences. The Line Fences Act, R.S.O. 1990 is the legislation that is applicable and it can be accessed by clicking here.

This Act stipulates in section three that an owner of land may construct and maintain a fence to mark the boundary between the owner’s land and adjoining lands. When a fence is on the boundary and it needs to be repaired, if the two owners cannot agree on who does what and/or who pays, they can contact the clerk at their local municipality in order to view and arbitrate the issue at hand.

When the clerk’s office is notified, they will inform the adjoining owners that three fence-viewers will attend the property on a certain date which will usually be more than one week but not more than thirty days from the date of the receipt of the notice. The fence-viewers job is to help determine what portion of the fence each owner shall construct, reconstruct, repair and maintain. The owners are required to attend at the property as well. During this site visit, the fence-viewers will base their decisions on their examinations of the property/boundary fence and the evidence heard from the property owners involved in the dispute. Once a decision is reached the fence-viewers will make an award outlining details of the actions that are to be taken by one or more of the property owners. The award will outline:

a) The fences location.
b) That each owner shall construct, reconstruct or repair, as the case may be, one-half of the fence (or any portion deemed appropriate), or that one designated adjoining owner shall be responsible and provide notification to the other adjoining owner of the costs involved for any work incurred. The owner will then be required to pay for half of the costs incurred within 28 days.
c) A description of the fence which should include the materials to be used and should conform to any by-laws in place in that jurisdiction.
d) The date when construction, reconstruction, repairs or maintenance must be commenced and the work completed.
e) The costs of the proceedings and how they are to be paid (proportionate to each owner).

If any of the owners are unsatisfied with the award that is given, they are allowed to appeal the decision within 15 days of receiving a copy of the award. A copy of the Notice of Appeal must be provided to the adjoining owner. This appeal must be made in the prescribed form to the local municipality’s clerk’s office along with a fee of $50.00. The appeal allows for the referree to affirm the decision, set aside the appeal, and fix any errors to be corrected, or outline any alterations that are to be made. Also, they can order payment of the costs of the proceedings by any party involved.

If any party fails to complete their duties as outlined in the award, the adjoining owner may serve a notice requiring the owner to obey. If the owner does not do so within two weeks, the adjoining owner may complete the work as necessary and initiate proceedings to recover the full value of the work as well as the costs of the proceedings. It is also important to note that if the adjoining owner is required to enter onto the other individual’s property in order to conduct the work it is allowable to the extent that it is necessary and no waste is left over.

Any decision that is reached by the fence-viewers can be registered on title which makes it binding on current and future property owners, however, fences are not covered by title insurance. Agreements that are made between neighbours can also be registered on title even when fence-viewers are not involved in the cost sharing agreement. The agreements should outline the parties involved, and how the costs are to be split (often 50/50) by the adjoining owners. It is recommended that the agreement is registered on title in order to avoid any future issues with new potential owners.

The content of this article is intended to provide a general guide to the subject matter. The information does not constitute legal advice and a solicitor and client relationship is not created.

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