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.
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.
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.