Don't take law into own hands over fence dispute

Bob Aaron in Legal

The Ontario Court of Appeal has written what may well be the final chapter in what I call The Case of the $100,000 Fence.

The case involved a dispute over a strip of land between two houses on Johnston Ave. near Sheppard and Yonge in North Toronto.

Laura Cantera bought her house on that street back in 1997. Seven years later, in 2004, Wendy Eller and Paul Wright bought the property next door, intending to demolish it and build a new home on the lot. An old post and wire fence marked the boundary between the two houses, but unfortunately it was not on the deeded property line.

In fact, the fence was shown to be in the wrong position on a land survey done in 1952. Another survey report done in 1994 confirmed that the fence was still sitting well into the Eller and Wright property.

The south point of the disputed fence near the street line was 2.5 feet west of the real lot line, and the north point was 0.8 feet west of the line in the back yard.

As a result, the Cantera lot appeared to have a street frontage of 52 feet on the ground, and the Wright and Eller lot had a frontage of only 48 feet.

Wright was aware of the disputed strip of land at least a month before his closing in February, 2004, but closed in spite of it.

Increasingly tense negotiations took place in the spring of 2004 between Wright and Laura Cantera's husband, Leneo Sdao, who is a Toronto real estate lawyer.

Sdao had placed Wright on notice that his wife was claiming the disputed strip based on adverse possession (commonly known as squatter's rights) since 1952, and that any attempt to remove the old fence would be considered a trespass.

A few days later Wright removed the fence without permission and replaced it with an orange construction fence on the deed line, in preparation for building his new house.

Eventually, Cantera sued Wright and Eller for a declaration that she owned the disputed strip, and for damages for trespass.

In March, 2007 the case came up for trial in Toronto before Judge Alison Harvison Young. After hearing evidence for three days, she concluded that Cantera and the previous owner had acquired ownership of the strip by possessory title.

She ruled that they and the previous owners had met the tests of having possession of the land which was "open, notorious (obvious), constant, continuous, peaceful and exclusive of the right of the true owner" for a minimum period of 10 years. As a result, the court ruled that they had ownership of that land.

The judge ruled that Eller and Wright had to deliver possession of the strip to Cantera, and ordered them to pay $1,000 in nominal damages, $5,000 in punitive damages for trespass, and costs.

Early into the proceedings, Cantera had made a formal offer to settle the case for $1 in damages and the return of the disputed property.

Since the offer was not accepted, the defendants were ultimately ordered to pay the plaintiff's full legal fees from that point forward. Eller and Wright eventually had to pay Cantera a total of about $34,000 in interest, damages and costs.

But that didn't end the dispute. Eller and Wright appealed to the Court of Appeal in December last year.

A three-judge panel did not even bother to hear from Alistair Riswick, counsel for Cantera, before dismissing the appeal in a four-line decision, and ordering Eller and Wright to pay a further $12,500 in costs.

Combined with the total of $46,500 Eller and Wright were ordered to pay Cantera, and the costs of their own lawyer, my estimate is that they are into this little fence dispute to the tune of close to $100,000.

The case provides an important lesson to homeowners who are tempted to take the law into their own hands over a fence dispute.

Bob Aaron is a sole practitioner at the law firm of Aaron & Aaron in Toronto and a board member of the Tarion Warranty Corp.  Bob specializes in the areas of real estate, corporate and commercial law, estates and wills and landlord/tenant law. His Title Page column appears Saturdays in The Toronto Star and weekly on Move Smartly.  E-mail

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