Good Fences Make Good Neighbours

From Hadrian’s Wall to the Great Wall of China, thousands of years before Robert Frost’s prophetic words, neighbours have struggled with the age-old problem of constructing fences.

Just where to put it, is answered by the Romans and the Chinese. You place it along the boundary on your side of the property line. This way, you own it, and whether you are fencing other people out or your people in, this location makes the most sense.

You have the legal right to construct a fence right on the property line, but if you do, you run the risk that it will be jointly owned with the neighbour. If the neighbour is going to own it, then the neighbour should pay for it. The Line Fences Act provides something of a solution. It is an Ontario statute that covers the erection of fences along boundary lines. Both property owners have the right to erect a fence entirely on their own property and both property owners have the right to construct a fence along the boundary line. One owner may wish one kind of fence and the other owner may want a different kind or no fence at all.

The Act provides a mechanism to resolve disputes. The solution will be resolved usually as follows:

1) one party will be given authority to construct the fence,

2) the fence will be located along the boundary of the two properties,

3) the fence will be jointly owned,

4) each owner will have to pay a certain percentage of the cost (not
necessarily 50%), and

5) both owners will have to share in the maintenance.

So, let’s assume that you wish to have a 6 foot wood fence basically to protect your privacy and to keep your neighbour’s dog out of your backyard. The neighbour agrees to a fence, but just wishes to have a 3 foot chain link fence. What do you do? The fence viewers appointed under the Act are likely to conclude that your neighbour need only contribute one half the cost of the cheaper fence. If you go along with this, your neighbour will pay about one fifth of the cost and own one half of the fence.

In this case, it makes much more sense to follow Hadrian’s plan. Pay the entire cost, construct it yourself, own it and maintain it. In order to preserve your rights, the fence needs to be on your own property.

The next step is to determine the potential legal issues associated with the construction of the fence. Are you taking down an existing fence? Do you own that fence? What system of title registration governs your property? This is very, very important and the legal consequences can be different depending upon which system applies.

In Ontario, there are two systems: the Land Titles system and the Registry system. Under the newer Land Titles system, if a fence is incorrectly placed over your property line by your neighbour, you are legally entitled to have the neighbour remove the fence. This is not so with the Registry system. Rights can be acquired after long-term usage.

If for example, the neighbour’s fence is placed one foot over the property line, and you do nothing to object or grant permission, then after a period of 10 years you will no longer have the legal right to have it moved and the neighbour has the right to obtain a Court Order confirming his ownership of that one foot strip of property. It is therefore extremely important to know which system applies.

Another issue that we’ll have consider are the zoning and building by-laws.

Basically, in most municipalities a homeowner is entitled to construct a fence enclosing the rear yard provided the fence does not exceed 6’6″ in height or in the front yard provided it does not exceed 3’3” in height (in some municipalities, the maximum height is lower).

The height is measured from the ground to the highest point of the fence. This includes all decorative trim. In some cases, this maximum height may be exceeded as in the case of a noise attenuation barrier or in the case of a school or park provided the fence is chain link. However, the rules related to measurement may be different from one municipality to the next.

There are also site triangles to consider. If you have a corner lot, you must not construct a fence that would interfere with the visibility of traffic. In this case, you have to stay back from the corner by 20 feet. There is an additional concern with corner lots and the definition of “front yard”. Certain property boundaries may be the front yard for one owner but the rear yard for the adjacent owner. So, can you build a 6’6″ fence? The answer is yes if it’s your rear yard and no if it’s your front yard. The result is that along one boundary line, one owner could build a 3’3″ fence while the other could go to 6’6″. If you wish to have a fence of this height you may have to approach the other homeowner for permission.

Generally, the by-law does not concern itself with the materials you use. It is very important to contact the municipality to confirm the precise rules outlined in its by-law.

There are some further issues to consider in the form of registered restrictions or covenants registered against the title to your property. Often they will be registered by the developer and continue in force for 20 years and in some cases up to 40 years. These rules are specific to your subdivision and generally they deal with the nature, type, materials and the aesthetic appearance of the fence. These rules can be enforced through the Courts by the developer, the builder or any of the other homeowners.

In some neighbourhoods, only wood fences are allowed to ensure privacy, in others only chain link or other open fencing is allowed so as not to restrict visibility. These are the rules that are often overlooked by the homeowner at the time of fence construction. You may not worry about it, your neighbour may not worry about it and the purchaser of your property may prefer it; however, the mortgage company financing the purchase may require that it be demolished. The new purchaser will want to be compensated for the cost of construction of a new fence that is in compliance with the covenants. In this case, do your homework ahead of time.

Certainly, the best place to locate a fence is on your own side of the property line. For disputes with neighbours, you may need to resort to the Fence Viewers under the Line Fences Act. They will be appointed by the Clerk of the City (or municipality), if required.

The next step to consider is the materials you wish to use and any design or height restrictions imposed by the City under the zoning and building bylaws or the property developer by restrictive covenants.

However, now you come to the hard part. Just where is your property line? And, don’t forget about the underground services, water, hydro, sewers, gas lines, telephone lines and cable TV. If you call them, they will pleased to attend at your premises and mark out the approximate location with spray paint. Since this will last only 10 to 14 days, you should be ready to build.

Let’s assume you wish to construct a 6 foot wood fence. The standard posts are 4 inches by 4 inches and your boundary line is thinner than the narrowest thread. If you build it on the property line, it will encroach over your neighbour’s property by 2 inches. If you are both building the fence, then this is fine, but if it’s your project, move it back just inside the line.

How do you find out the exact location? The answer is: you don’t. You will have to call a surveyor to do this. The next best solution is to see if one of the utility companies can show you where it is, and mark the location for you.

The homemade solution is to obtain some markers from the survey of your property and the adjoining property. The corners of both buildings measured from the foundation should be shown as setbacks from the property line. This will provide you with four starting points. Take four strings and locate them at each of these corners. The strings should be long enough to make reach across the boundary line. Once you have four strings all ready to rotate, you will need to measure the setback distance as shown on the survey and mark that distance on the string with some tape. Now, you will be able to line up all four pieces of tape into a straight line. It’s not a very good arrangement, but it works reasonably well over distances of less than 100 feet. Be cautious, because you may be out less than an inch at one end and find that you are out over six inches at the other.

The best advice here, is call a surveyor! Even better, if you are in a new area, organize a fence building weekend with your neighbours and share the cost of a surveyor. Local fence companies will be happy to dig the holes and place the posts, making fence building an enjoyable community activity for your neighbourhood.

And, please remember “good fences make good neighbours”.

Brian Madigan LL.B., Broker

www.OntarioRealEstateSource.com

Comments 34

  1. The fence builder claims that the only one house gets the good side and my house will get the unfinished side on both sides of the fence. He claimed that’s how he has built fences for 42 years. Is this true

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      No, just use a design with two good sides. There are plenty of them. There’s simply an example of someone doing it incorrectly for 42 years in a row!

  2. Hello , I have an issue with a problem neighbour and want to build a fence on my property and have a survey that marks my property line , I had a contractor here to give me a price and my neighbour came out and told the contractor if he steps on his property while building the fence he will call the police and have him charged with trespassing , we may need to go on the property to build the fence , can he obstruct us from building my fence if we need to go onto the other side of the fence to nail in boards , please help !!!

    1. Section 11(4) of the Line Fences Act of Ontario provides that the property owner, or someone acting on the property owner’s behalf may enter the adjoining property to the extent necessary to do and complete the fencing work.

  3. What if we constructed a replacement rear fence using the original footings only to find out that the footings encroached on city property by 3 feet?
    The original footings were established by my next door neighbour. Logic would tell me that because all the houses along the street have rear fences many could be encroaching on city property. Our house was built in 1967.

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        If you would like to discuss yoiur own situation then please contact me directly. There are far too many variables to provide n meaningful answer here.

        Brian

  4. I bought a house 16 years ago. There was a fence in my backyard. Some years later my neighbour asked me to tear down the fence and move it over onto my property. The fence wasn’t put up perfectly straight. It does deviate at the most an inch in some places. It was built while my neighbour lived next door before we moved in. Do we have the comply with my neighbours wishes? This will cost thousands. What do we do?

    1. Depends where you live but if it’s been over 10 years in Ontario you don’t have to do what your neighbor wants. They would have had to deal with it within the 1st 10 years.

  5. We have an existing fence that is over 20 years old and needs repair/improvement. My neighbour is a very hostile person and we’d like to repair the fence ourselves (we do not wish to ask her for money). I believe the fence runs along the property line – are we allowed to make alterations to the fence?

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  6. My neighbor had built her fence centered on the property line. The first post up against our shared wall sits about 3″ on my property. It was existing when I moved here. Now she wants to replace or repair it. I do not want to share a fence, I’d rather build my own entirely on my side of the property line, and that’s what I told her in writing. She’s going ahead with her plans, what can I do?

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  7. I live in scarborough. My neighbour and I share a standard 3 foot chain link fence. She is the niece of the homeowner. The home is owned by the aunt that now lives in a retirement home. This niece will eventually inherit the home after her aunt passes away. This niece has bought two massive dogs that easily put two legs on the top fence and reach over onto my side. I cannot walk on the side of my property without the dogs rushing and scaring me as they can easily . We really need to have a 6 foot wooden fence to block the dogs and allow me to feel less threatened. To make things more interesting, this niece has also bought 4 parrots and have them in a room which is located by the side bedroom window. She often keeps the window open and these birds collectively scream like its Jurassic Park. Ideally, I would like for her to pay 50% for a wooden fence and to also have her put up some sort of noise reduction barrier near the window. The neighbour two houses over also wants the niece to pay for 50% of a fence for the same reason. Can I get her to pay for half of the fence? Can she stop a fence from being constructed?

  8. I have a 19 year old shared boundary line fence that is dilapidated and falling over. Can I remove the boards on my side of the fence? Are they my boards if they are clearly on my proper? Do I need my neighbour’s consent to remove them even though they are on my property? I have the iron bar to prove it?

  9. Our fence that is over 20 years old is falling apart and an eyesore. We approached our neighbour to have it replaced. He said he would not pay for work that he could do himself. We have seen his shoddy work when he repaired a portion of the fence years ago. We don’t want him repeating this with the whole fence. It is on the property line. We are original owners of our home, but they are not. The original fence was erected with the first owners. If we get a contractor to replace the fence, is he obligated to pay for half. Can we do this without his consent?

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  10. I just had my back neighbor take down our nice wood fence without discussing it with me and then he replaced it with a plastic fence. I found out from our previous owners that they had put up the fence, so it was technically my fence. (I’m not totally sure if this fence is on the property line or on my side of the property line.
    Should I just let it go because at least there is a fence there? Not sure what my next course of action should be.

  11. I have a newly constructed fence that the previous owner erected and my neighbour finished about 30ft length at 4ft height not the 6ft height the previous owner.m of my property erected. The fence itself is solely on my property, however the footings do extend onto the neighbours property. Is this still shared ownership or am I the sole owner of the fence? Id like to change the style and height of the fence (at my expense) and neighbour is in disagreement.

  12. My neighbour is building a new gate into their backyard. Can their new post for the gate be placed on the property line of adjoining properties in Ontario? Thank you.

  13. i have a fence thats not straight part on the property line part on my neighbour’s apparently one foot i bought the property with the fence about thirty years ago my neighbour about fifteen we need a new fence which we both agree to share the cost now she wants to reclaim the foot of her property i have a garden and plants in that area. How do i deal with this. Please.

  14. I am living in a new town house. and i am the owner, my neighbors around want to build fence. they told will starting on Sept and finish in Mid-October.

    we not in a very good finical situation. we have no money to spend for 3000 to building a fence. i want to know that if we reject to build the fence. will they able to claim me by court or anything?

    anyway we will move out next year , and i told them they all knowledge my reason. i try to push them to build that in next year after i sold my house then they can arrange to the next owner. but they really want to do it today….

    what can I do to avoid them to build the fence this year?

  15. I am living in a new built area, my left side neighbor and I agree to put up fence, but the neighbor on my back doesn’t want to put up fence even never mention about sharing fee. If I wanted to put up the fence inside of the line, are there any limits like how close to the line can it be

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      Be set back, just enough so that the entire fence including the posts, and the cement foundations for the posts are all on your property. The “fencing” can then be on the inside, the middle or on the outside without encroaching over the property line.

  16. We have a fence on the property line. The fence blew down in the last wind storm, May 23. So today I get home from work, look in the backyard, and the fence is gone and there is no temporary fence. We both have pools and dogs, he has a German Shepherd and we have a Rottweiler. I think the fence company is very irresponsible for doing this. I put up a orange plastic fence to keep the dogs in each other’s yard, as the dont get along with each other. Should the fence company have put up a temporary fence, and what legalities would there be if something happened,

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      MOst fence companies will erect a temporary fence while the work is being undertaken. in the meantime, there are, of course, significant liability risks.

  17. Unbeknownst to us, our Fence company erected our fence 6 inches on the neighbour’s property. We split the cost with the neighbour and shared in the fence cost. We did not know that it was not installed on the property line and assumed the fence company installed it properly. Now the neighbour want us to move the fence or “buy the land from them.” What am I obligated to do?

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      1. Thanks for your reply, Brian. Whose responsibility is moving the fence if it is owned jointly? It was installed jointly so we each own it.

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          It’s a joint decision to move it and a joint financial responsibility.

          However, if the fence company placed it incorrectly, then they should bear the expense.

          1. Really appreciate your response.

            The neighbour seems to think that I should buy the land from him but the Town says we cannot sever land.

            The Town Bylaw says that this is a Civil issue and they won’t intervene.

            So I’m thinking that I can be a good neighbour and move the fence at a shared cost but that they can’t really come after me for something that I didn’t even do.

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