October 29, 2015
Arbitrating Fence Disputes
Have a fence issue with your neighbor? Arbitration may be the answer.
This may be news to some: the Line Fences Act (the “Act”) does not address boundary issues between adjoining properties. The Act only addresses fence issues, more specifically, line fence issues. Line fences are fences that mark the boundary between properties.
The purpose of the Act is to provide a procedure for the resolution of line fence disputes between owners of adjoining properties.
Line fence disputes may be settled informally by owners or through arbitration. The administration of the dispute process is managed by the Clerk, who is a municipal staff member(s).
When disputes cannot be resolved informally by property owners, the Act applies its arbitration procedure in two situations:
1. when no fence exits and an owner wishes to construct a fence to mark the boundary; or
2. when a fence already exists, and one owner believes it needs to be reconstructed or repaired.
Noted above, the Act’s arbitration dispute resolution process does not apply to boundary line issues. One concern is some owners of an adjoining property may simply claim that the dispute is about the boundary line rather than an actual line fence; preventing arbitration of the actual dispute. In such a case evidence of a conflicting land survey of the adjoining property would be needed.
When one of the above two situations applies, an owner can request, at a cost, a Fence-Viewer to resolve the dispute by first viewing the fence issue, then arbitrating the dispute, and then issuing an Award. Fence-Viewers can only address:
1. the responsibility to be attributed to each adjoining owner; or
2. the description of the fence to be constructed or reconstructed (including the type of materials to be used)
With a Fence-Viewer being restricted to issue awards only in the above two scenarios subsequently leaves related issues, such as non-line fence boundary issues, unaddressed. The lack of a process to address related boundary issues offers opportunity to promote arbitration and resolve disputes through private arbitration; similar to arbitrating line fence issues, and in a time and cost efficient, private manner.
By Nav Pannu, Litigation & Arbitration Lawyer