Laws regarding fence line ownership – The Law

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Q: Can one property owner remove a fence line without the neighbour’s permission? If a property is posted “no trespassing” can the neighbour enter the land and erect a fence on land that is not hers? Can a surveyor do a survey on land that is posted “no trespassing” without permission of the landowner? If a survey shows the fence line is not on the boundary line, what steps must be taken to move the fence to its correct location?

A: Fence rules are somewhat ambiguous and while in my years of writing this column I have received questions regularly on fence disputes, my research shows few such disputes go to court. I assume that in the end, good-neighbour polices prevail.

You raise two issues: What obligations does an owner have to fence and who has property rights in the fence?

Fencing obligations are set out in the Line Fence Act of Alberta, from where you write. Section 2 (1) says when two owners or occupiers of adjoining parcels want to erect a line or boundary fence, both of them shall bear the expense. Subsection 2 states that if the owner or occupier of a parcel erects a line fence, the owner or occupier of the adjoining parcel will contribute to the fence as soon as he receives any benefit.

While the act does not state if you have animals you must fence, the stray animals legislation makes the owner of stray cattle liable for damages.

In my view, the combined effect of these laws is to require fencing. Note that in Manitoba and Saskatchewan, municipalities can allow animals to wander at large.

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If a person has erected a fence, obviously he is the owner. However, this does not necessarily mean the owner can do with it as he wishes. If the neighbour has contributed to the fence, then the neighbour also has an interest.

Even if the neighbour hasn’t contributed, it seems to me there is a possibility that the neighbour may have cattle in the future and therefore may require the fence.

Once the neighbour has cattle, he must contribute to its upkeep. So the neighbour may have a future interest in the fence built by the other.

If neighbours can’t agree, the law sets out an arbitration procedure for dealing with disputes.

Essentially, each owner appoints an arbitrator and together they will try to resolve the dispute. If the arbitrators can’t agree, they can appoint an umpire. If one party refuses to appoint an arbitrator, the other can ask a justice of the peace to do so.

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In my opinion there is no legal requirement that the fence be on the exact boundary line. The arbitration process allows the arbitrators to decide “the proper location” of the fence line and provides that their decision does not affect “title to the land.” That can only be determined by a survey. Surveyors have the right to cross private property to carry out surveys. In Alberta, the surveyor is liable for any damage the surveyor or his assistants cause.

Is it trespass if one neighbour puts a fence on the other’s land? First, the law contemplates that the fence might not be exactly on the boundary line. Even if it was trespass, there is in law the concept that some wrongs are so minor that the law will not intervene.

In my view, unless one owner deliberately placed the fence well over the boundary line, there is no trespass.

Fence laws are similar in most other provinces.

Don Purich is a former practising lawyer who is now involved in publishing, teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.

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  • farmer

    FENCING LAW VS HERDING LAW: I understand that Manitoba adopted the fencing law which means if you have property and do not want livestock upon your property (railroads, highways,etc.) you have to fence off your property. I would like to have more details on this law

  • Tony

    My neighbor has just installed his new livestock fence starting at our mutually-shared survey stake, straight on a tangent that is 5 to 10 ft. on my property side of the surveyed boundary by the time he reached 1500 ft. along our joint property boundary. If he continues on this same tangent he will be maybe 7 to 15 ft. on my side of the line, when he reaches the opposite side of the quarter section.
    What steps must I take to reclaim my property?

    • Hi Tony,

      I’m no expert by any stretch, but I would suggest that a good chat with your neighbour about your concerns would be a good place to start.

      Cheers,
      Paul “lucky to have great neighbours” Yanko – WP Web ed

    • Harold

      The number one thing to do to end your grief is to inform your neighbor of this violation promptly. Eliminate the possibility that your neighbor simply does not know. Do not hesitate to point to the actual property line and do not blame yourself if your neighbor has to redo the work already done. He is solely to blame and the onus and burden to correct lies entirely upon your neighbor. None of this is your doing and had he consulted with you in the first place (always wise) the courtesy would have saved you and him the troubles.
      It is important for your clarity of mind to know that you are not on a quest to “reclaim” your property. You own what you own and it has not been taken from you. You are simply removing the neighbor’s property off of your property and If your neighbor expresses ill intent, the removal is at the neighbor’s expense if he persists in the wrong-doing. If you are correct, it is neighborly for you to inform him of this action and to attempt to save him from future unnecessary expenses. The expense can come by means of the neighbor’s corrective measures and labor or by you hiring a company to do the removal on behalf of the neighbor and presenting him the bill. (Court ordered remedy) The company you hire only needs to “up root” and to move the property onto the rightful property or appointed impound yard. You will call it the removal wire and sticks (property) and he will call it a fence thereafter if he so wishes. You can further request of the neighbor to be neighborly in turn and save you the trouble of seeking a Court remedy. Right is right and wrong is wrong and there is no middle-ground. You have to prove without a doubt, factual, undeniable, evidence that the neighbor is constructing a fence upon your property to make a claim. In other words, it is prudent to “win the case” before you approach your neighbor or the Court. You can also take it upon yourself to remove the fence and have the neighbor sue you. This action is often better because the neighbor without the burden of proof (property line) will not be able to move the claim forward in Court. (his lawyer will tell him so) You cannot move a false claim forward in Court. (he does not own title of your property) This leaves the fence you removed uprooted and on your neighbor property and you free of any Court proceedings. As an alternative you can draw up a non-transferable contract and lease your land monthly to the neighbor with a clause that he removes the fence upon the termination or expiry of the one year renewable contract. The fence line and property line will determine the leased land and then set your fee. You will need to gain his signature. I am sure that if you present all of these remedies to your neighbor, he will seriously stop and think about what he is doing. Keep in mind that if you go to sell your property these legal matters will be forced upon both of you again by the buyer.
      Unfortunately, when your Rights are violated by others they also give to you the grief and burden that is necessary to correct their wrong and you cannot escape it. Fairness only exists amongst those who are honest and have integrity.
      This is not legal advice but you can gain legal advice by phoning a Lawyer and going no further than the first consultation which by Law is provided free of charge and by Law you are under no obligation to hire that Lawyer. You can use what is written to ask time saving questions if you choose to give one a phone call.

  • violet

    I have no livestock on my 25 acres but the owner of the rest of the quarter section does. Who is obligated to put up a fence?

    • Harold

      No one is obligated to put up a fence, However, the owner is liable for any damages to your property and can also be liable for your loss of enjoyment of your property if the owner’s cattle impede you in any way. It is wise if the owner of the cattle puts up a fence on his side of the property line to limit the liability he faces but you are not obligated to join into the costs unless there is a contract which compels you to do so. This is information and not legal advice.

  • Beth

    We have a chain link fence with a beautiful vine growing on it to allow for privacy.
    The neighbour just maliciously and spitefully cut the vine back to the fence and it will now die.
    I live in Canada, northern Ont.
    Is there anything I can do about this?

    • Beverly Leroux

      What happened as someone did the same to my fence this week, I’m still trying to find out who did it?

  • Verna Phippen

    I would NOT follow the advice of this FORMER lawyer and HIS opinion. It is most ridiculous advice. ie: “Don Purich is a former practicing lawyer.” Practicing is spelled with a ‘c’ The Western Producer. Not only is your journalism shoddy, so is your spelling!

    • Hi Verna,

      When it comes to spelling, we follow the guidelines laid out in a publication put out by the Canadian Press called, “Caps and Spelling.”

      You’ll find a copy of it on the desk of most Canadian journalists.

      In the case of “practice” vs “practise,” Caps and Spelling notes the former as a noun or adjective, and the latter a verb.

      The Oxford english dictionary happens to agree with this convention:

      https://en.oxforddictionaries.com/definition/practise

      However an older Funk and Wagnall dictionary kicking around the office here at WP HQ does not even include the “s” version. Online, though, F&W seems to agree with Oxford:

      http://www.funkandwagnalls.com/?search=practise

      Obviously, as is the case with many words, there are inconsistencies with how so-called “experts” believe they should be used. And the english language is evolving all the time.

      Caps and Spelling exists to give journalists a standardized usage when it comes to these “tricky” words. So it’s really just a way to settle a debate in journalistic circles.

      Not necessarily right or wrong, just consistent.

      All of which is to say, according to our guidelines, “practising” is, in fact, the proper usage in this instance.

      Thanks for keeping us on our toes.

      Cheers,
      Paul – WP web editor