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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

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