Q: What is the responsibility for fence line upkeep between neighbours?
What if the fence is down an unused municipal road? Can the
municipality order the fence line be taken down? If a fence line is
clearly on one person’s property, does the other person have a
responsibility for upkeep? Can the person on whose land the line is on
take it down?
A: Legislation in all three prairie provinces, and in many others,
provides that everyone who benefits from a fence must contribute to its
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maintenance. For example, Axel and Bill are two neighbours and both
keep cattle. Both have to contribute. If only Bill has cattle, then he
is responsible for the fence upkeep. If at a later date Axel gets
cattle, then he must contribute to the upkeep.
The fact that the fence line is not exactly on the boundary line, does
not change the responsibility between the parties. Say that the line is
six metres onto Bill’s land. If Axel has cattle, he must still
contribute to its upkeep. Nor, in my opinion, is Bill entitled to take
down the fence without consent.
If Bill believes that Axel has used a portion of his land because the
fence is over the property line, he can ask a court to adjudicate the
rights between parties.
A judge has several options. He can order Axel to pay rent to Bill for
the use of the six metres. Second, he can order that ownership of the
land be transferred to Axel and require Axel to pay the market price.
Or, he can order that the fence be placed on the exact boundary and
that Axel have no further access to the six metres.
If owners can’t resolve fence line disputes, an arbitration procedure
is set out in the law. Generally, each owner picks an arbitrator who
then select a third person to be a chair. Full details can be found in
Saskatchewan’s Line Fence Act (www.qp.gov.sk.ca),
Alberta’s Act (www.qp.gov.ab.ca) or Manitoba’s Boundary and Line Fence
Act (www.gov.mb.ca/
chc/statpub/free). If the arbitration panel decides the fence line
should remain in its current location on Bill’s property, this doesn’t
mean that Axel has gained ownership of additional land. Property rights
have to be decided by the court procedure described earlier.
Municipal roads, whether used, abandoned or never developed, are
property of the crown and under control of the municipality. One cannot
gain rights to such land merely by using the roadway, or by the passage
of time.
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.
