Whether a hedge is a fence matters because it can mean the
difference between relief under the Property Law Act and
the end of your ability to use a neighbour's land. You might
seek relief under the Property Law Act where you discover
after many years, for example, that part of your drive way is
actually on your neighbour's property. Your neighbour now wants
you to stop trespassing. You have been using the driveway for years
and there is really no other access. What can you do?
Well, if you cannot reach agreement on a formal easement, one
step is to seek an order from the court declaring that you are
entitled to buy or use the disputed land. That authority is found
in section 36 of the Property Law Act. However, such
relief is only available if either "a building encroaches . .
. on adjoining land" or "a fence has been improperly
located so as to enclose adjoining land". So, if your driveway
is discovered to be over the property line, you will need to
persuade the court it was "fenced" off from your
neighbour if you are going to get a court ordered easement or
The term "fence" is not defined in the legislation and
the courts interpret that word liberally. The test has been met in
cases where an old fence has partially fallen down; where it is
made up of hedgerows, trees and fencing; where it is a retaining
wall; and where a pile of linearly place stones marked an effective
boundary. As one judge described it, a fence is "a structure
of any kind, provided it serves the purpose of either enclosing
property or separating contiguous estates." If you are able to
satisfy this test, the court moves on to consider whether you are
entitled to the remedy you seek.
This depends on matters such as how it is the parties were
unaware of the real property lines, how big the encroachment is,
how long it has been there, have there been improvements, what is
the cost to move them and what is the effect of the encroachment on
the present and future value of the lands. From the court's
perspective, the task is to resolve boundary disputes in an
Two recent cases demonstrate different outcomes. In the first case, two stratas got into a dispute when it
was discovered a small section of the driveway into one was
actually on the property of the other. This had been the case for
decades and was only discovered when someone had a survey done. The
curved driveway was bordered by a row of cedar trees believed to
have been planted by the original developer. Everyone had always
thought the trees sat along the property line. The court found the
trees were a "hedge" within the meaning of the Property
Law Act and ultimately ordered that the sliver of driveway be
transferred to the trespassing strata (with compensation to the
other strata). The reasons given by the court included the length
of time the driveway had been in use, the permanent nature of the
driveway, the cost to provide alternate access and the
disproportionate effect on the two stratas if the driveway could no
longer be used. For one strata it provided crucial access, for the
other its loss was "negligible".
A second case went the other way. Here, a large barn
and nearby shed turned out to be protruding onto the next door
property. They had been there for years and were surrounded by a
fence enclosing them with the barn owner's land. The barn and
shed could not be moved and were used daily by their owner. The
total area of the encroachment was about 7,100 square feet in
properties that were each 10 acres in size. Yet, the court held the
barn, shed and fence had to be removed as the trespassing owner was
not entitled to relief under the Property Law Act. The
single biggest reason for this result was the court's finding
that the barn owner had always known his buildings encroached on
the neighbour's land. The Property Law Act only
applies to situations where the party seeking the easement honestly
believed that the land was his or was genuinely unaware of the true
If you are unsure of your property boundaries and discover that
you may be trespassing on your neighbour's land, it is possible
to regularize this situation by way of a court ordered easement or
transfer if the trespassed portion is significant to you. Whether
you get that court order depends entirely on the evidence you are
able to marshal in your favour.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Title requisitions, and responses to title requisitions, are often evidenced by two simple letters back and forth between solicitors; and yet, in the content of those two letters is the meat of the real estate transaction.
Now that the turmoil attendant upon the transference of power from one great party in the State to another has subsided, people may be permitted to devote their minds to a consideration of those sectional questions which are not less important for the welfare of the persons concerned, than are the great national issues upon which they have just pronounced judgment.
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