Q&A

So it sounds like your neighbour was waiting for the new owners (you) to move in before raising the issue of the newly built fence....not uncommon I'm afraid.

I'm going to make some assumptions in answering your question:

1. You are in Ontario.

2. There actually is an easement on title in the location that you think it is.

3. The fence actually is encroaching on the easement.

The notice should also tell you exactly what the infraction is (how "too big" the deck is), what you have to do to remedy it, and how long you have to do it. Call or visit the city building department to confirm these details.

Depending on your situation you may have to change the deck to make it the right size or you may be able to apply to the Committee of Adjustments for a minor variance to the bylaw that would make an exception for your deck.

Again, contact your local building department for details.

The location of fences is not the City's business in the Greater Toronto Area. They care about how tall the fences are but do not enforce where they are placed.

They will not send anyone to examine it nor is there a civic process for fining a neighbour for taking down a fence. Nor is it a police matter. The removal of a fence that's on the boundary is not a criminal offence. The only recourse you have is, unfortunately, through the legal system

This is a fairly complex situation so I'd like to caveat our response by saying we are surveyors, not lawyers, and our recommendation would be to consult a lawyer on the matter.

That said, our answer your question comes in several parts.

First, You are approaching this the correct way. Committee of Adjustments is your first pathway. If this doesn't resolve to your satisfaction, then legal action is your next.

If the fence is on the neighbour's property then they are technically within their rights to have it moved onto the property line. Who pays for the move boils down to how far it's encroaching and whether that encroachment is preventing them from using their land in a material way.

If it's a substantial encroachment, then they are within their rights to ask you to move it. If it's a minor encroachment which is not interfering with their use of land, then it's more likely to be moved at their expense, if at all.

The right of way across your property gives the residents of the building next door the right to pass over a specific portion of your land, as defined in the easement document and survey plan, for the purpose of accessing the street.

It does not permit them to use other parts of your land for any purpose at all.

The most common boundary evidence, at least in urban areas, is iron survey bars that surveyors put in the ground to mark the corners of a property boundary. These iron bars, usually 2 or 4 feet long are driven into the ground so that their tops are a couple of inches under the ground.

Over long periods of time these bars rust away or in some cases are moved or destroyed.

You can ask the seller for the condo plans, or you can get them yourself. All condominium buildings are registered with the local Land Registry Office where the survey plans are held.

These plans are public documents and can be purchased from the LRO for a fee.

Problems with shared driveways are pretty common. The obligations and rights of the shared driveway are governed by an easement over one or both of the properties.

It's likely that the easement straddles the property line giving both you and your neighbour free and clear access of that portion of the driveway so that you can both access the back of the property (usually to access garages at the back). In some cases the easement is on only one of the properties giving the other property access over your land to get to the back. 

Hi Cathy;

First, and most importantly, you and your neighbour must determine and agree upon the exact location of the boundary. This dispute is based on a disagreement as to where the boundary is located.

The best way to do that is to get a surveyor to stake the boundary out.