Do I have to pay to rebuild a shared fence?

January 9, 2006 9:10 PM

My neighbour just tore down a shared fence, and says I have to share the cost to rebuild it. Surely not?

She's doing some construction work, and had a shared fence that goes down the property line dismantled (without consulting me -- I only found this out by looking out my window).

She also told me she thinks the fence should be moved over two feet (onto my lawn. And note I have a property survey that shows the fence).

My questions are:
1. Are there regulations covering shared fences that would stipulate that I do have to chip in for a new one?
2. She's thinks my survey is wrong, says she is going to have land surveyed again. How likely is it that my survey is wrong, if it was done by a licenced surveyor?

I have a call in to a real estate lawyer, but she's a little slow in getting back to me. And this is *really* bothering me. The neighbour is, well, confrontational. And loud.
p.s. I am in Canada, if that makes a difference.

posted by Badmichelle to law & government (39 comments total)

I can't imagine you have to pay for the fence. After all, the fence isn't even a requirement is it? You could quite legally have no fence separating your properties.

However, (the above being a guess, the following being the main point of my answer): You have to live next to this person. That doesn't mean "pay for it." but it does mean "be sure to take your relationship with your neighbours and what that is worth to you into account when deciding what to do."
posted by duck at 9:38 PM on January 9, 2006

Is the fence on your land, her land or right in the middle? If it's on her land like she thinks, she just tore down her own fence. If it's on your land, she owes you a fence and if it was shared she destroyed it without your permission and owes you the price of half a fence but I doubt you are under any legal obligation to spend it on a new one.
posted by fshgrl at 9:41 PM on January 9, 2006

Are you in Ontario? If so this link may help you out. This one too, but it's a bit dense for me. FWIW I had the same situation as you (Canada as well, Northern Ontario) and our municipal law prevented any work from being done between November and March, which allowed cooler heads ro prevail. Good luck, fences can be tricky things.
posted by Isosceles at 9:41 PM on January 9, 2006

Call another real estate lawyer. Seriously. And then politely call the first real estate lawyer again, and again, and again. Do it until you get an answer to your questions. I can't imagine any other way to deal with a loud, confrontational neighbor (who tears down a shared fence without consulting you, and then tries to bully you into giving up part of your property) than by immediately involving a lawyer.
posted by mediareport at 9:43 PM on January 9, 2006

In the US, there is no such thing as a 'shared fence.' It either sits on your property or on your neighbors. If it sits on your property and your neighbor dismantled it, yeah, she has to fix it. If it sits on her property and she dismantled it, you're outta luck. Does your survey show the fence on your property? These guys don't screw up, its their job. If the fence resides on your property, you own it and its her responsibility to fix it. Then the war begins.
posted by freeflytim at 9:43 PM on January 9, 2006

Good god, what a bitch! You weren't consulted about it. What fshgrl and others said... if you don't want the fence, I'd tell her to f--- off.
posted by rolypolyman at 9:47 PM on January 9, 2006

Fence disputes are usually covered under the Line Fences Act and any bylaws that the city has, a "fence viewer" can arbitrate the dispute if that is the case. Might want to call the city clerk and ask them how to proceed. Toronto has some online information here about fence disputes.
posted by squeak at 9:47 PM on January 9, 2006

I you can afford it, you may consider having a survey done yourself as well. Who knows who she will use (brother-in-law). IANAL but if the fence has been up for a certain amount of time (x number of years) I think there is in most cases a forfeiture of some sort. It may be pins and needle time but you have made the best decision so far in contacting a lawyer to help.

AS duck says, a guess is you shouldn't have to pay for a shared fence if you don't want one. You may even have recourse in demanding she pay for it in entirety because she took it down without consultation, and with a neighbor like that a fence may be a good thing (12 feet high with razor wire and flood lights to boot)

but that is what the lawyer is for

good luck
posted by edgeways at 9:47 PM on January 9, 2006

If the library has this book it might help:

Fences and the Law - Presently Out of Print
(1988) 2nd ed. ISBN: 0-919779-05-0 SMITHER Item 339
This publication is a key to the Ontario statute, the Line Fences Act. It identified the duties of owners, occupants and those of the municipal clerk. The appointment, remuneration and powers of fence-viewers, with particular reference to the making of awards, certification and determination are researched in depth. This book examines lawful fences and fencing adjacent to highways, original allowances for roads, railway rights-of-way, pits, mining properties and vacant lots, swimming pools and cemeteries, and the installation of snow and barbed wire fences. A detailed checklist provides step-by-step procedures to be followed in the arbitration of disputes between owners and occupants for the purpose of an award, certification or determination of fence-viewers. Approx. 360 pgs.

If the fence was up for more than 20 years then it may well be taken as de facto evidence of possession under the law -- regardless of who it favours.

A recent survey by a registered surveyor in an urban area should be accurate to less than a centimetre.
posted by Rumple at 9:49 PM on January 9, 2006

It's possible that the Line Fences Act mentioned above will cover this. But, if the person tore down a fence on her own property for her own purposes, I wouldn't think you'd need to cover that. And if she tore down a fence on your property, then she probably owes you for that. If the fence is right on the property line and was only torn down for her purposes, then it sounds like she'd have to rebuild it or else compensate you for it somehow.

Contact the City. This being Canada, your best first choice is usually free information from the government. From there, you can decide where to go.
posted by acoutu at 9:54 PM on January 9, 2006

Thanks for all the links and suggestions. Who knew there was such a job as a "fence viewer"?

I'll make some more phone calls tomorrow and see where it leads.

We have what is possibly the smallest lot into Toronto. If she moves that fence over, it's going to run through our living room.

(And I do want the fence back where it belongs. I don't trust this new neighbour -- she's weirdly aggressive).
posted by Badmichelle at 10:25 PM on January 9, 2006

Good fences make good neighbours.

I am in Canada, if that makes a difference.

It makes a helluva difference, like any legal question. Fences laws were amongst the very first and oldest on the books in English law (which Canadian is obviously derived from). In my State (in Australia) your weird aggressive neighbour would be shit outta luck and would have to build a new fence, along the commonly agreed property boundary (i.e. the old one), particularly because she's acted in bad faith and not consulted you at all. Had she consulted you and you'd both agreed that the fence was in disrepair and needed replacing, then you'd both be liable for an appropriately costed and fit for purpose boundary fence. But not the way she's gone about it.

One bit of advice: you're probably gonna need a lawyer, or some independent arbitration. I'd get some photographic evidence of what she's done and how she's approached the issue so far.
posted by wilful at 10:43 PM on January 9, 2006

"be sure to take your relationship with your neighbours and what that is worth to you into account when deciding what to do."

Also take into consideration that rewarding this aggression (or simple selfish cluelessness) will likely result in more of the same in the future.

Stand your ground, literally. Be polite, but firm.

We had a neighbor like this (he was a lawyer to boot). It was a relief when they finally moved.
posted by Good Brain at 11:29 PM on January 9, 2006

Document absolutely every fence-related interaction with her, and make a record of all the conversations that you've had to date. If this ends up in court, you want a nice log of dates, times and conversational content.

I thoroughly disagree with the implication that you might want to go easy on this woman to be neighborly. It would just make you permanently view her as that aggressive bitch who takes advantage of you.

You can't control her decision to be an aggressive bitch, but you can choose not to be taken advantage of.
posted by I Love Tacos at 11:40 PM on January 9, 2006

Give her this poem and maybe she'll soften up a bit.
posted by ori at 11:43 PM on January 9, 2006

Take Pictures! Now!
posted by sophist at 12:36 AM on January 10, 2006

Did you buy title insurance when you closed on this property? (Only a possibility if you purchased the property after 1991.) If so then you are protected against claims against your property, including if a new survey reveals that the fence line was wrong. At least, you'll get a cheque out of it, that is.
posted by chuma at 4:06 AM on January 10, 2006

What I Love Tacos said. Document, be firm, don't give an inch. This is not the sort of person who can be reasoned with or sweet-talked; this is the Psycho Neighbor from Hell. New Yorkers know how to deal with these types, but I'm afraid you Canadians may be at a disadvantage. You want I should send my cousin Vinnie up your way?
posted by languagehat at 5:42 AM on January 10, 2006

In American property law (at least in Texas where my grandfather lived) a neighbor who moved a fence line (we're talking rural, barbed wire) could, if the actual owner did not protest, eventually come to gain legal rights to the property thus enclosed. IANAL, but perhaps that would be worth checking into here just in case your neighbor is correct about the original property line. Maybe you can pick up a couple of extra feet and really pissing her off in the process!
posted by Pressed Rat at 6:17 AM on January 10, 2006

I want to say "ditto" to "document everything" and "take pictures now."

I would get a good lawyer and let the lawyer handle as much of it as possible. That way you personally don't have to be the "bad guy." Especially if the neighbour has her own lawyer, then her own lawyer becomes the bearer of bad news to her.

Don't give in, but that doesn't mean you have to correct her when she says something wrong either. If there's a tractor arriving on your lawn then you have to do something but if the neighbour is just making incorrect statements about the location of the property line you don't have to fight it out right there -- you could just say "Gee, my survey shows something different than that. We'll have to get to the bottom of this and figure out which one is right." (I personally like the approach of, where-ever possible, framing statements so that the problem is a problem that "we" have with some external, preferably non-personal, entity). If you're not someplace where the results of the argument will mean something (e.g. a courtroom) then it's probably not worth having.
posted by winston at 6:27 AM on January 10, 2006

If you've got a land survey from a registered surveyor and it turns out to be wrong you can make a claim against the surveyor's insurance.
posted by Mitheral at 6:30 AM on January 10, 2006

What Pressed Rat is talking about is known as adverse possession, but I'm not sure if it would help you (even though it is part of Canadian law). The fence's placement is actual, visible, notorious, exclusive, and continuous, but not hostile as its placement is along the surveyed boundaries of the property.
posted by zsazsa at 6:46 AM on January 10, 2006

Consult a lawyer of course but if it was a shared fence as she claims then she owes you half the value of the old fence for destroying it without your consent.

I'm leaning towards informing her that she can keep the money she owes you and apply it towards the building of the new fence, you are not moving the fence line unless forced to do so, and any costs she incurs in the building of the new fence above the amount she owes you are her responsibility since she decided to remove the fence in the first place.

Oh, and the new fence is a shared fence so she needs to consult you in regards to it's construction.
posted by Wong Fei-hung at 7:24 AM on January 10, 2006

Your neighbor is a thief. She's trying to steal two feet of land from you - perhaps her hot tub won't fit, or her dog wants more room to run around, or whatever.

Forget about the real estate lawyer - there's no way they can help you at this point. Call the city, as recommended above. Document, with photos and journal. You're going to end up in court with her.
posted by jellicle at 7:29 AM on January 10, 2006

I'm not sure which direction it is, but depending on which side the fenceposts are on determines who owns the fence. A fence that border's my mother's backyard was falling over, and the people that owned it (who had the posts on their side) had to replace it. I'm not sure if this method applies anywhere else but Texas. If the posts were on your side and she tore the fence down, you could possibly sue for destruction of private property, even, if this is the case.
posted by vanoakenfold at 7:41 AM on January 10, 2006

Surely not. If she wants then she can pay for it. And vice-versa. The real question is, who owned the fence that was torn down. If it was on your property than she owes you a fence. If you want a fence enough to offer to help pay for it then it'supto you.
posted by JamesMessick at 7:55 AM on January 10, 2006

Thanks all. I've now documented (with lots of photos) and logged all our communication. Emailed a lawyer. And I have contacted the city to request a building inspection. Apparently, you can do that while construction is going on.

The neighbour does have a building permit posted in her front window, but I wonder if she's doing more than she's supposed to, and that's why she's so edgy. Her extension certainly looks very close to where the fence used to be.

Plus, while I was taking photos, one of the construction workers told me this woman has also had disagreements with the people who live on the other side of her house. I think I'll contact them, too.

Thanks again!
posted by Badmichelle at 8:03 AM on January 10, 2006

Thank you, zsazsa, I couln't remember the term....
posted by Pressed Rat at 8:07 AM on January 10, 2006

If you really have a very small lot, find out if there are size restrictions on lots in your area. In my mom's neighborhood people have started selling off half their lots so other folks can build McMansions on them -- the previous owners of my mother's lot sold a sliver of it to the neighbor so it was small enough that it could not be legally divided.
posted by o2b at 8:58 AM on January 10, 2006

You mentioned that she's building an extension on her house, and it appears close to the old fence-line. That's why she wants to move the new fence-line onto your property, so it looks like she's within the setback lines. A setback line is a minimum distance between a building and a lot line. If she scoots the fence over two feet, she appears to have two more feet of building room. And, after a while, she might get the extra two feet added to her lot. Much of this depends on local law, and you should continue to follow up with the lawyer, and also get your own survey. A few dollars now could save you many headaches later.
posted by MrZero at 10:53 AM on January 10, 2006

If she's extending her home/porch/patio/whatever, there are city laws regarding how close to the property line she can build. You'll want to get out a tape measure and make sure she's not infringing on the mandatory minimum spacing.
posted by five fresh fish at 11:12 AM on January 10, 2006

Er... or what MrZero said. Guess I shoulda refreshed the page...
posted by five fresh fish at 11:13 AM on January 10, 2006

Wow -- I love learning that there are official fence viewers and laws and arbitrators. I'm interested in hearing how all this pans out, so please keep us in the loop, Badmichelle!
posted by delfuego at 12:03 PM on January 10, 2006

Whatever happens just for your own amusement value you should make unreasonable demands regarding the type of fence that will be erected. Be very particular about style, color, slope. Tell her you the fence to have "a Tibetan-Jamaican theme in stone and iron" Use every obscure ordinance you can dig up to object to anything she suggests.
posted by StarForce5 at 12:32 PM on January 10, 2006

Careful with that, StarForce5. If the neighbor took down the fence and is required to erect a new fence, surely she is only liable to erect a fence that replaces the previous one. Making demands for something other that what was there could land Badmichelle with a surprise bill after-the-fact for her half, no?
posted by vignettist at 1:01 PM on January 10, 2006

The others are correct; it seems, from what little information we have, that what is going on is almost certainly an attempt by your neighbor to grab an extra couple feet so that she doesn't get busted for violating regulations above her new construction.

Don't let her steal your property!
posted by Justinian at 1:04 PM on January 10, 2006

Some follow up: I was finally able to talk to someone who used to do surveying for a living. To start, the survey (called a cadastral survey) will show trees, buildings, walkways, fences and any right of ways for a peice of land. Look at the surveyors real property report (which is a legal document btw) and at the corners of your lot you should see at least two marks at the front of your property that indicate surveyors "monuments" have been installed to mark the boundaries (sometimes there are four), you should also see the dimensions of the property. He said that when a report is made the if the surveyor had any concerns (buildings that encroach on your property etc) they would be outlined in the report, I'd check your surveyors report to see if the fence is mentioned as a cause for concern. He seems to think if the fence is shown on your survey then it is your fence.

He also said this is all to common and some property owners will go to great lengths to encroach on property that isn't theirs including digging the monuments up and moving them in an effort to prove where the property lines are when new fences are put up.

Hope this helps.
posted by squeak at 3:01 PM on January 10, 2006

In the US, there is no such thing as a 'shared fence.' It either sits on your property or on your neighbors.

I believe this is false.

Consider Nolo's answer in their Fences FAQ:
The fence on the line between my land and my neighbor's is in bad shape. Can I fix it or tear it down?

Unless the property owners agree otherwise, fences on a boundary line belong to both owners when both are using the fence. Both owners are responsible for keeping the fence in good repair, and neither may remove it without the other's permission.

A few states have harsh penalties for refusing to chip in for maintenance after a reasonable request from the other owner. Connecticut, for example, allows one neighbor to go ahead and repair, and then sue the other owner for double the cost.

Of course, it's rare that a landowner needs to resort to a lawsuit. Your first step should be to talk to the neighbor about how to tackle the problem. Your neighbor will probably be delighted that you're taking the initiative to fix a fence that's already an eyesore and might deteriorate into a real danger.

Additionally, several states in the West have more arcane fence law than this, due to range disputes.

Personally, I think you have the right to sue her for demolishing a fence that you had a half-interest in. She should either replace it or reimburse you. I would also be very suspicious of motive regarding the fence move.

Certainly if her suggestion that the fence should be entirely on your property is taken, you have the option of erecting no fence at all. I'd stick to that at a bare minimum; if she wants a fence she'll have to put one up on her own property, adhering to setback requirements from her property line.

Stand your ground. She's a bully, and she's hoping you'll just roll over.
posted by dhartung at 11:41 PM on January 10, 2006

Make sure your property markers match the surveyor's report. My parents had a neighbour who moved theirs when my dad was building a fence. My dad had even taken the step of not building right up to their property line (since that one neighbour was a nut and he felt they might tear it down or do something weird). But the neighbour actually yanked the marker out of the ground and moved it in broad daylight, just because she thought she could. Nut!

(Also, it was a new subdivision and no one had fenced property. My dad asked each of the three neighbours if they were planning to build a fence and whether they wanted to share costs. All three said no. As soon as my dad finished building the fence at his expense and effort, two of the neighbours then fenced off the rest of their property. My dad was none too pleased.)
posted by acoutu at 11:03 PM on January 11, 2006