Office: 165 Pretoria Avenue, Ottawa ON. K1S 1X1

Phone: 613.238.2801

Fax: 613.238.4583

email: roberthof@royallepage.ca

royal lepage

Blog

Archive for August, 2015

Five things to remember about boundary rights

There is an expression that good fences make good neighbours. One qualification. Only when the fence happens to be on the correct boundary line. Here are five things to remember when it comes to boundary lines:

There is a difference between a fence line and a deed line.

If you look at a survey, there may be two lines displayed, a fence line, and a deed line. The deed line is where the boundary line SHOULD be, based on the title papers. The fence line shows where the fence is actually located. If the fence is not on the deed line, then it will typically require both a lawyer and a surveyor to determine where the boundary line should be and whether the fence can be moved.

Can you still steal someone’s land by possession?

This is called Adverse Possession and is still available today in many parts of Ontario. However, it is getting harder to prove. Since most of the land has been converted into the Land Titles System, it now will take typically at least 20 years to be able to prove that you have taken your neighbour’s land by possession. Sorry, you cannot steal land from the government, so even if you have fenced in some City land or Conservation land for 30 years, you can be asked to move the fence back if they find out.

Who owns the tree on the property line?

If the tree is on the boundary line, then both neighbours own the tree. You cannot remove the tree without the permission of both owners. You can trim the branches or the roots of your neighbour’s tree to the property line, as long as you do not harm the tree. You cannot enter your neighbour’s land to do this. If your tree falls and damages your neighbour’s property, then your neighbour will be responsible for the loss and will have to claim from their own insurance policy. Strange result but true.

Is there a law that there must be a fence on the boundary line?

Unless you have a swimming pool or your land is backing onto a public highway, there is no law saying you must have a fence. If there are disagreements between neighbours over the type of fence to build, or whether a fence needs to be rebuilt, then each City has a process to decide this. Some cities send out referees to determine who is right. The reasonable solution is just share the cost of a simple fence. If one neighbour wants a more elaborate fence, let them pay the difference.

What should you do when an argument erupts over a boundary line?

I have seen neighbours come close to physical violence over arguments about boundary lines. I have seen cases where people just take matters into their own hands, rip up the fence and build it on a different boundary line. Although the best answer is to get a new survey and work it out, that may not always be possible. Make sure you take pictures of where your fence is in advance, so if your neighbour does take it down, you can prove later where the fence should be, if the case goes to court.

Understand your boundary rights and you will be able to get along better with your neighbours.

by Toronto lawyer, Mark Weisleder


Be wary of contracts with “on closing” conditions

Mary Duncan (name changed) and her husband bought a house last year. The purchase agreement contained a warranty that the appliances and fixtures (including the furnace) would be in good working order on closing.

The sellers also promised that the swimming pool as well as equipment would be in good working order. That promise only applied to the condition of the pool and equipment on the actual date of closing.

After moving in last June, the buyers discovered that the pool pump and the solar control panel to the pool heater were not working.

When a gas company employee came to turn on the natural gas supply, Duncan was told that the furnace venting and/or chimney liner had to be replaced.

A heating contractor was called in to replace the chimney liner. He informed the buyers that the heat exchanger in the furnace was defective and unusable.

As a result they had to buy a new, high efficiency furnace at a total cost of $4,237.50. In addition, the defective pool pump and solar control panel were replaced at a cost of $1,778.62/

The couple sued the former owner for $6,016.12 for breach of the “good condition” warranties in the purchase agreement. The deputy judge’s ruling contains some valuable advice to purchasers on what should and what should not be inserted in an agreement of purchase and sale.

“When buying a house,” he wrote, “it is critical to ensure that it is very clear in the Agreement of Purchase and Sale that everyone knows exactly what is being bargained for and that the Agreement of Purchase and Sale contains clear, unambiguous clauses that express the intent of the parties.”

As worded, the warranties contained in the Duncans’ agreement only spoke to the condition of the appliances, fixtures and pool equipment only on the day of closing and they expired that day. The boilerplate wording, used by many agents and realtor software programs, did not promise that the equipment would be working any time after closing.

In his ruling the judge wrote, “Purchasers should inspect the property just before closing to ensure that the seller’s warranties are true.”

The buyers’ claim was dismissed. The judge suggested that the buyers should have inserted a clause that the items be in good working order as of a date after closing, or that there could have been a cash hold-back as security that the equipment was working.

The buyers failed to ensure that they had a right to inspect the fixtures, the pool and its equipment on or just before the closing date to satisfy themselves that everything was working.

Using boilerplate clauses in realtor software programs without considering their meaning can be very risky.

I think the decision is wrong because the items were clearly defective before closing – but the judge’s comments are still valuable advice.

By Bob Aaron

Bob Aaron is a Toronto real estate lawyer. He can be reached at bob@aaron.ca.


Dogfight with condo bites couple

This is the story of a $47,000 dog named Peaches and its troubled stay in a condominium.

It all began back in July 2014 when a lady named Anne and her dog moved into a condominium unit owned by her common-law partner, Bob. The unit is part of a condominium corporation which consists of 57 suites in three buildings.

One of the condominium’s rules restricts the size of a resident’s dog or cat to 25 pounds or less. Anne and Bob were aware of the 25-pound restriction when they moved into the unit. Shortly after the approximately 40-pound pooch arrived, the property manager sent a letter advising that Peaches – a Golden Retriever/Australian Shepherd mixed breed – had to leave because it exceeded the weight limit and was in breach of the rules.

After a series of exchanges with the property manager, the unit’s owners took the position that Peaches was a therapy dog and Anne produced a doctor’s letter stating that the dog helped her deal with “stress and past abuse”. She requested an accommodation under the Ontario Human Rights Code. Typically the Code trumps the rules in a condominium project if it can be proven that that the applicant has a need related to his or her disability.

Since the doctor’s letter was vague about her specific disability, the condo board denied Anne’s request for an accommodation and again demanded that the dog be removed from the building.

Ultimately the corporation took Bob and Anne to court seeking an order that the dog be removed permanently from the unit. The case was heard in April and the judge’s decision was released in June.

The judge found that the doctor’s letter was insufficiently detailed to establish that Anne had a disability entitling her to claim a duty of accommodation from the condominium. As well, even if the evidence showed she had a disability, she would not have been prohibited from having a service dog, but only from having one heavier than 25 pounds.

The judge noted that stress is not a disability recognized by the Human Rights Code and that the condominium had not discriminated against Anne. It had requested further objective information about her medical condition and the request was refused.

After a two-day court hearing, the judge ordered Peaches to be removed from the building.

In a subsequent ruling released last month, the judge awarded the condominium corporation a whopping $47,000 in court costs, which can be collected as lien against Bob’s unit. On top of that, the couple had to pay their own lawyers and those costs could easily have doubled the bill.

The lesson that emerges from this case is owners who a request a duty of accommodation from their condominium should make sure they have a disability recognized by the Human Rights Code.

As well, getting into a fight with a condominium corporation can be a very risky and expensive undertaking.

By Bob Aaron, a Toronto real estate lawyer. He can be reached at bob@aaron.ca.

Note from Robert: The names of the people involved have been changed.