Sometimes, a fence does more than mark the line between two properties. It can lead to a difference of opinion and escalate into a dispute between neighbours. Here are some recommendations to keep your fence-building plans from degenerating into bickering with other residents nearby.
A few steps to follow to ensure a worry-free project
- Before you do anything else, contact your municipality to learn about the local by-laws. Installation of fences and hedges delimiting private property, as well as their extent and location with respect to municipal roadways and facilities (fire hydrants, signage, etc.) is governed at the municipal level. Municipalities also set fence height restrictions and determine which materials are authorized and which are forbidden.
- Check your property’s certificate of location to see whether it mentions one or more easements; for example, a right of way.
- Based on that information, decide on the type of fencing that best suits your needs and tastes, and best matches the style of your house.
- Inform any neighbours concerned of the nature and features of your planned fence. If necessary, review the plan in light of their comments.
- Suggest to the neighbours involved that the property be staked. If they see the merits of this procedure, they may agree to share in its cost. If not, you will have to pay for it yourself.
- Secure the necessary permit from your municipality.
- Order the fence, or build it yourself!
Staking: to properly determine the property line and encroachments
Staking by a land surveyor is the surest method of ensuring the fence is installed in the right place and complies with the dividing line—that is, the boundary between properties.
The only way of avoiding any problems is to build the fence right on the dividing line. And the best guarantee of that is staking.
Staking is an operation that physically marks the property line. It is based on the opinion of the surveyor, stemming from his or her analysis of the cadastral map, the deeds of ownership, and the occupancy of the properties. The operation is for the sole benefit of the person who requests it from the survey. It does not have the same value as a boundary determination, which permanently and irrevocably establishes the dividing line between two properties; the land surveyor drafts the minutes of the boundary determination, which are then recorded in the land register.
The cost of a staking operation for an urban property is slightly more than $1,000. This amount includes production of a report (staking certificate).
If the operation reveals one or more occupancy issues—for example, an encroachment due to a paved driveway extending beyond a dividing line—the land surveyor will refrain from laying markers to prevent potential frustration on the part of the owner of the land(s) involved, but will still produce a report consisting of a map and text. In such a case, fees for investigation (usually billed by the hour) will be added.
There are two possible solutions to this type of problem. The parties may agree to some sort of corrective action or arrangement—in other words, reach an amicable solution. But if things don’t proceed in that friendly a manner, a demand letter (formal notice) must be sent to the recalcitrant neighbour. The end result can be imposition of a judicial determination of boundaries, an exercise that is costly and likely to take a long time.
Installing the fence
You can choose to build a fence right along the dividing line, or entirely on your side of it. In either case, the fence must comply with all municipal standards.
If you choose to build the fence on the dividing line, you and your neighbour will own it equally, and must share the costs of construction, installation and maintenance.
You must, however, reach agreement with the neighbour as to the type of fence and its characteristics before it is built, and ask him or her to pay half the cost of construction. If you cannot agree, you will have to go to court and seek an order that will determine those details.
If you would rather build the fence entirely on your side of the dividing line, the fence will belong entirely to you. You must then assume the full cost of construction, and maintain it.
Just because you decide to build on your side of the line, however, doesn’t mean everything is all said and done. In fact, it opens the door to recourse by a neighbour to so-called acquisitive prescription, under Section 2875 of the Civil Code of Quebec. Such action may entitle a neighbour who, for a period of at least 10 years, has occupied a parcel of your land located on his or her side of a fence, and behaved as though he or she owns that land, to go to court and claim ownership. As a result, it is advisable for the owner of a fence built on his or her own land to consult a notary to ensure that his or her right of ownership will be protected.
The same advice applies if you, as an owner, learn that the fence separating you from a neighbour encroaches on your own land. It would be a mistake to think you are fully protected if there is a written agreement signed by the two parties stipulating that the existing fence will be tolerated until it is time to replace it, but that the replacement fence must respect the dividing line. Often, such documents can be mislaid over time—for example if the house changes hands more than once. Only a duly notarized temporary easement can legally entitle you to rest easy.
Moreover, if you simply rebuild a fence along the same line as a previous one, with no further verification of the property boundary, there is no guarantee that you won’t be putting a possible existing occupancy problem off until later.
Remember, there’s a reason behind the popular saying “good fences make good neighbours.” So if you’re thinking of putting up a fence—and would rather a neighbour didn’t put up a fight—don’t hesitate to seek professional help from a land surveyor or notary.
Our thanks to François Harvey, land surveyor with Groupe VRSB, and Me. Gérard Guay, Notary, Drummondville, for their contributions to this instalment of Tips & Tricks.