Fences make good neighbours is Readers Digest Law #2 (everyone knows that Readers Digest Law #1 is possession is 9/10ths of the law).
Fences make a statement. Fences define the boundary of what you consider to be your land. Fences keep others out and perhaps your dog in.
Fences can define what you think you own and exclude others from making acts of possession against your property. The law as it applies to adverse possession (squatters rights) is very complex and puts a very heavy onus on a person trying to dispossess someone else of title for which that person has a proper deed. It is more complicated than to simply say that if you possess the land for ten years itÃ¢ï¿½ï¿½s yours. A fence can be a vital tool in proving this claim. However, this complicated, and very old, common-law concept is best left to another discussion.
The Line Fences Act in Ontario has been on the books for many, many years. It sets out a code or protocol for the establishment of boundary fences between properties.
Legislation makes it mandatory that every municipality appoint fence viewers. The Act states that an owner of land may construct and maintain a fence to mark the boundary between the owners land and adjoining lands.
Should the owner of the adjoining lands not agree concerning the establishment of a boundary fence, the owner may notify the Clerk of the local municipality of the owners desire for a fence viewer to view and arbitrate as to what portion of the fence each owner shall construct, reconstruct or repair and maintain and keep up.
The cost to initiate a fence viewing is rather modest. Three fence viewers are assigned to each fence view and are each paid $50.00 plus mileage.
It can be seen that the authority of the fence viewer is quite broad.
A fence viewer may be involved in the establishment of a boundary fence which does not exist, or if the fence does exist to have it repaired or reconstructed and to order the sharing of the costs of construction, reconstruction or repair, as the case may be, of such a fence.
The fence viewer has considerable authority. The fence viewer may require the adjoining owners to give evidence and may examine owners and their witnesses on their oath.
It is mandatory that a fence viewer make an award and that the award shall state that the fence shall be constructed and maintained and kept up to mark the boundary between adjoining lands, or if the fence already exists, that the fence shall be reconstructed or repaired.
It is interesting to note that the fence viewer shall specify the location of the fence and the responsibility of the adjoining owner. The fence viewer, in the award, gives a description of the fence including the materials to be used in construction, the date by which construction shall commence and be completed and shall award the cost of the proceedings and the proportion of the cost which each owner is to pay.
The fence viewer has some objectivity. The viewer shall have regard to suitableness of the fence and the needs of the adjoining owners. The fence viewer even has wide latitude to locate a fence where the formation of the ground by reason of streams or other causes makes it impractical to locate the fence on the line between the adjoining lands.
The Line Fences Act has teeth. If one of the owners fails to obey an award by a fence viewer, upon service of proper notice, the owner may complete the work himself, within two weeks after service of notice, and may sue in court for recovery of the damages. However, if the fence viewers have to re-attend they can determine the value of the work to be done by the owner desiring to enforce an award together with costs. The proceed can then be collected by the municipality by putting this sum on the tax roll and have the amount collected in the same manner as taxes. An award made under this legislation may be registered in the land registry office and it is considered a charge on the lands.
If fences make good neighbours then the Line Fences Act is there to arbitrate between neighbours who are not on such good terms.
Should you have any questions for Ask A Lawyer, please direct them to the Simcoe Reformer or ask a lawyer of your choice.