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Debra, Lawyer
Category: Canada Law
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Ontario Law - can my neighbour place his fence footings on

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Ontario Law - can my neighbour place his fence footings on my property when I've specifically asked him not to do so? I live in the City of Toronto. He wanted to be able to trespass across my property to get the post driller into his back yard and in exchange for that permission, I asked that he keep his fence and footings (and all parts thereof) within his property (and to allow us to trespass on his property to build and maintain our own fence as necessary. He's on the street that runs perpendicular to ours - and we're at the corner of the two streets. We are going to be building a fence within our property line in the next few weeks - he's starting this week. Our builder also has to build a french drain at the property line (same property line) because his eaves trough drains into our yard and water ponds there. I've asked him to divert it but he hasn't yet and can't be expected to do so on a permanent basis. I don't mind paying for this (so much) but if he puts his fence footings on my property, the french drain will have to be moved forward and I'll lose more of the use of my back yard - which is a postage stamp as it is! I'm a human rights lawyer not a property lawyer and I can't find anything in the Bylaw or provincial laws that speak to encroachment - and it's been years since I took Property 101. Legalese is fine.
JA: Because real estate law varies from place to place, can you tell me what state this is in?
Customer: Ontario CANADA
JA: Has anything been filed or reported?
Customer: Nothing reported or filed - thought I did serve him with written permission with the caveat included that nothing be built on my property (and why).
JA: Anything else you want the lawyer to know before I connect you?
Customer: Don't think so. Like I say, I can't remember Property Law anymore!

Hello! My name is Debra (formerly known as Legal Ease). Thank you for your question. I'm reviewing it now, and will post back again shortly.

I am sorry to hear this.

Are you saying he is planning to actually build his own fence on your property?

Does he knows you are building your own fence?

Customer: replied 26 days ago.
He's building it on the property line - but the footings and north side of fence (it's going to be about 8" deep - so 4" of boards) will encroach on my property. And yes, he knows we're building a fence, the style and that we're also building new decks, taking out the back wall of the house to move the doors and windows (no addition) and replace the kitchen. Our renos have been in the works for nearly a year.

He is not making any sense really in terms of building his own fence.

But in any event, no cannot trespass on your property at all. He has not right to put anything on your property without your consent. He cannot go over the property line.

So what you can do is send him a letter putting your demand in writing and tell him if he trespasses on the property at all you will seek a court order to have his footings removed at his expense and that then you will be also seeking an order that your property be put back exactly the way it was before he put in the footings as well as for your costs.

But also if you see him doing that then go out to the people putting the footings in and tell them to stop and get off your property and call the police if necessary.

Does that help?

Please feel free to post back with any follow-up questions you may have. If you don't have any then I hope I have earned a 5 star rating but if you don't feel that I have please don't hesitate to reply back and let me know what more I can do to assist you. Finally, please know that even after you rate me I will be here for you and you can ask follow-up questions if you think of them later on at no further charge of course.

Customer: replied 26 days ago.
Is there a statute or specific case I can reference? I trust your response - but he knows I'm a lawyer and will ask for authority. I'd love to keep this relationship as good as possible (hard when his wife screamed at me because I called the police about suspected drug activity - neighbourhood has its problems - and I was wrong in that instance - it was her friend parking around the corner so her husband wouldn't know she was going clubbing - weird couple).

It's based on the common law for the most part. There is no Act that applies here. There are by-laws regulating fence construction and there is an Act called the Line Fences Act where you can have city officials attend to arbitrate disputes about the cost of a shared fence or where the fence should go in terms of determining where the property line is but nothing about this.

But that neighbour really should understand no one can use someone else's property without consent and certainly cannot erect something on the property. He has to move his footings onto his property and they cannot extend at all beyond the property line.

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