Legalese_09-34

Jeff Green | Aug 27, 2009

By  Susan Irwin, Executive Director / Lawyer, Rural Legal Services

Good fences may make for good neighbours, but the process of getting those fences built and maintained can result in angry disputes that can be carried on for generations. It is therefore not surprising that The Line Fences Act, which governs the resolution of fence disputes between property owners, is one of Ontario’s most historic pieces of legislation.

Basically, if you wish to build a new fence, or reconstruct or repair an old fence that acts as a boundary between two pieces of land, you should first approach your neighbour. You should tell the neighbour what it is you wish to do and, if you want the neighbour to contribute to the cost, work out an arrangement – in writing – as to who will pay for what, or who will do what work, etc.

If you can’t agree on the type of fence, the location of the fence, the need for repairs, or a cost sharing arrangement, then you can seek help by visiting the clerk of your township. You must complete an application under the Act, and the clerk will then contact three people called “fence viewers”, or “line fence viewers”, to conduct a “view” of the proposed or existing fence. The fence viewers are appointed by the township council.

The fence viewers will arbitrate the dispute. On an appointed day, they will meet with both property owners and must actually view the fence line, usually by walking it from end to end. During the “view” they can also take evidence, under oath, from the owners or other witnesses about anything relevant to the fence. Because of the weather, these sessions are not held over the winter.

The fence viewers must consider a number of factors before making a decision, called “an award”. For example, they must consider the use being made of both properties and the benefits that will flow to the owners from having a suitable fence repaired or constructed. A farmer with livestock on land next to a cottage, for instance, is usually seen to be getting a greater benefit from a wire fence than his neighbour. The cottage owner however, still derives a benefit from having the boundary line marked and from perhaps not having to worry about stray cattle trampling across his or her garden or lawn.

Fence viewers must also consider the nature of the land, whether any existing fencing is adequate, potential future land use and any other factors that they consider relevant.

The fence viewers will then issue an award, in writing, specifying the location of the fence, the exact nature or type of fence, and will determine who will construct and maintain the fence and divide up the fencing costs between the owners. They will also specify a time period for completion of the construction or repairs, and determine who will pay for the costs of the fence viewing proceedings.

The costs of the fence do not have to be divided equally between adjoining landowners and may be apportioned according to benefit or, as the viewers feel is appropriate. They can even order that a fence be built off the boundary line and over part of one person’s lands where the streams or other types of terrain make it impractical to build the fence right on the boundary.

Either property owner can appeal a decision of the fence viewers but this must be done within 15 days of receiving the award. As well, if a property owner fails to obey the terms of the award, there are a number of enforcement options, including having the costs collected by the municipality in the same manner as property taxes. A fence built in contravention of an award can also be taken down or changed, but only by order of the fence viewers.

Property owners should be aware however, that calling in the fence viewers cannot resolve the location of a disputed boundary. Although the fence viewers can seek assistance from a surveyor, the owner’s application for a fence viewing can be refused until the property boundary is established through a survey or other legal means (such as under the Boundaries Act).

If you have internet access, you can view a guide to the Line Fences Act on the Municipal Affairs and Housing website at: www.mah.gov.on.ca/Page176.aspx. Alternatively and for more information about the fence viewing process and associated fees, you can contact your local municipal office or this legal clinic. Although Rural Legal Services does not provide representation in real estate matters we are able to provide information without charge and to assist with referrals.