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GOOD FENCES MAKE GOOD NEIGHBOURS

CHAPTER 1 As the recent purchaser of a newly built home, I find myself faced with the problem that many new homebuyers are facing of having to landscape my yard. This includes the backyard fence, which can be a long, expensive job. This makes it natural to want to build it with the assistance of your neighbour if no one has begun to build, or attach to the neighbour fence if they have finished theirs ahead of you. Both of these lead to potential legal problems. When building a fence, an error in judgement can lead to a shared fence being built solely on one property rather than the property line. This error means the neighbour who has the fence on his/her property would need to register the other neighbour's right to the fence on their title as an easement, something that can be avoided with proper planning. Another problem with a poorly placed fence is that it can affect a future sale of your home. A Real Property Report is needed for most house sales in Alberta to prove compliance with City By-laws and to show all improvements are on your property and not your neighbours. If the easement does not appear on title for the fence that is not on the property line, the sale may be jeopardized. A Real Property Report that does not show proper compliance can be a landowner's, a realtor's and a lawyer's worst nightmare.

Building onto an existing fence not only exposes us to the problem of a poorly placed fence but also brings up trespass as an issue. Building onto a neighbours' fence without permission is a form of trespassing under Alberta law. This type of trespassing is defined as anything that will in any way affect your neighbours' actual use of their property, or any possible future use. This definition is extremely broad and as a result, attaching to a fence without permission will leave you vulnerable to a number of penalties and claims. These include being forced to make payment for the trespass or removing any part of the fence that interferes with the neighbour's property. While this does not sound too bad, the payment will be much higher than anyone would ask to share a fence, and a fence would look unusual and be very unstable if it isn't hooked up to anything.

One very important rule to follow before constructing a fence or any other structure on your property is to contact the City Planning Department to see if you need a building permit and if your proposed structure meets the City Planning By-Law. The City has the authority to make you remove a fence or structure if it does not meet the specifications of the By-law.

The problems that can come with building a fence can be avoided by taking some very simple steps. If it is an entirely new fence you are looking to build, all you need to do is:

1. Check for metal markers in the ground called corner pins that mark your property line;
2. Have a quick talk with your neighbour about the kind of fence you want to build and how to split the cost;
3. Contact the City to make sure your height and location satisfy the Planning By-law;
4. Build the fence along your shared property line. If you are building onto an existing fence, simply find out whether the fence is on the property line by checking the corner pins, and have a talk with your neighbour about permission to build and sharing the cost of the fence they have already fenced.

As Robert Frost once wrote, 'good fences make good neighbours,' and following these simple steps will keep it that way.

By Brian Shantz
August 9, 2006