“Good fences make good neighbours” is an old English proverb made popular by Robert Frost in his 1914 poem “Mending Wall.” It was quoted again last year in an Ontario court case by Justice Wailan Low.
She was adjudicating a boundary dispute between two neighbours on Ellins Ave., near St. Clair Ave. W. and Scarlett Rd.
Low began her judgment with these words: “Good fences make good neighbours. The corollary of that adage is that when a neighbour tears down a fence, much more may be lost than the fence.”
Maria Piekarczyk and Adam Zebrowski are neighbours on the north side of the street. Piekarczyk lives to the west of Zebrowski with her spouse David Peattie. Zebrowski lives next door to the east with his girlfriend Maryanne Small.
Between the two houses is a paved space about nine feet wide. Standing in front of both houses, it looks like the driveway belongs to the Piekarczyk house on the left, but in fact ownership is divided.
In fact, however, only about 7.4 feet of the driveway belongs to the Piekarczyk house on the left, and about 1.5 feet belongs to Zebrowski, whose house is to the right, or east. Unfortunately, due to rather sloppy land descriptions when the houses were built, a mutual right-of way was never created. On paper, neither neighbour has the right to use the other’s portion of the driveway.
To the rear of the driveway both neighbours have backyards. In April 2008, Peattie took down the angled portion of a fence that visually separated the two back yards. The following month Zebrowski rebuilt it with a different configuration. The new fence made it more awkward for Piekarczyk to back her car into the rear yard.
Then, as the judge delicately explains it, “relations between the neighbours deteriorated rapidly.”
Piekarczyk launched a court application for a ruling that she had an easement or right of way to use the neighbour’s 1.5 feet of the paved driveway. She needed the easement to access the double garage she had built in 1999 behind the house.
Piekarczyk wanted the court to rule that she had acquired what is known as a prescriptive easement or right to use the neighbour’s portion of the driveway. In order to do that, she had to prove that she and the prior owners of her house had used it for a period of 20 years prior to 2001, when the titles to the houses were converted to the Land Titles system by the government. Under the Land Titles system, there can be no adverse possession or what is commonly called squatter’s rights unless those rights existed on the day before conversion.
Piekarczyk was also required to prove that the 20-year use of the strip by herself and the prior owners of her house was continuous, open, uninterrupted and peaceful — and was without the permission of the neighbouring owners of the 1.5 foot strip.
At the hearing, Piekarczyk did not call as witnesses the owners of her house back to 1981. As a result there was no evidence of uninterrupted use for a period of 20 years, and there was some evidence to the contrary.
Due to the lack of evidence, the court dismissed the application for a right to travel over the east 1.5 feet of the driveway. The effect of Piekarczyk losing her case means that Zebrowski could fence off his narrow portion of the driveway and Piekarczyk is restricted to using only the westerly 7.4 feet of the land — effectively preventing it from being used for vehicular access to the garage at the rear.
Low ended her judgment by expressing the hope “that common sense and some degree of wisdom will prevail and that (Zebrowski) will refrain from re-igniting an unfortunately inflammatory dynamic between these neighbours by building a fence down the boundary line.”
I wonder what Robert Frost would have said about Justice Low’s decision.
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 email@example.com
February 21, 2011Legal |