Badly Placed Fences Make Angry Neighbours

Bob Aaron in Legal

Frank and Dolores Lipischak are next-door neighbours to Diana DeWolf and Joe Russ on Caille Ave. in the town of Lakeshore in Essex County. Their homes front on Lake St. Clair and their deep lots back onto the municipal street.

When the Lipischaks bought their house in 1969, there was a wire fence running north-south separating the two properties. Shortly afterward, Frank Lipischak replaced it with a new chain link fence in the same location. The fence that was intended to divide the two lots along the property line in fact extended into the DeWolf property by about 3.6 inches.

Due to this misalignment of the boundary fence over a period of many years, the Lipischaks claimed ownership by adverse possession (also known as “squatter’s rights”) to two specific areas of the DeWolf and Russ property, measuring a total of 192 square feet.

In Ontario, the right to acquire title to a part of a neighbour’s property requires exclusive, open, continuous and obvious use without the neighbour’s permission for a period of 10 years prior to the date title to the property was converted to the electronic Land Titles system.

DeWolf and Russ objected to the misalignment and eventually the boundary dispute wound up in court before Justice Anthony E. Cusinato in Windsor. The Lipischaks asked the court for a declaration that DeWolf and Russ had lost their title to the disputed area.

The evidence showed that the Lipischaks had occupied a narrow strip of land belonging to the lot next door for more than the minimum 10-year period, starting with their purchase in 1969. The judge concluded that this state of affairs continued for so long because neither of the owners bothered to obtain a land survey report from an Ontario land surveyor.

In his written decision in June 2010, the judge ruled that the Lipischaks owned the disputed strip and DeWolf and Russ were ordered to remove any fences, concrete, trees and other improvements they placed on that land.

Justice Cusinato noted in his decision, “To state that these neighbours . . . have been anything other than neighbourly is an understatement. Each . . . maintained a selfish view of their own rights. While their homes are their castles, it does not extend over the property rights of another.”

The judge found that each neighbour was “overly sensitive to their property rights and did not conduct themselves in a manner that may have avoided the conclusion of these issues in a court of law . . . ”

In court, DeWolf admitted that she had removed the chain link fence, cut the concrete sidewalk and installed a new fence in the space between the two homes. For this conduct, and her “arrogance to take the law into (her) own hands,” the judge awarded her neighbours $5,934 plus taxes for the new fence and sidewalk, $7,500 in punitive damages for her “ horrific and excessive conduct,” and a further $15,000 in damages for trespass.

Following the release of the judge’s decision, DeWolf was also ordered to pay the plaintiff’s court costs of $89,371 for an 11-day trial. (The plaintiffs had asked for considerably more.)

DeWolf and Russ appealed to the Ontario Court of Appeal. Last fall, a three-judge panel refused to interfere with the trial judge’s findings, and dismissed their appeal, ordering them to pay appeal costs of $20,000 to the Lipischaks.

I calculate the damages and costs awards against the defendants at $138,577, in addition to their own lawyer’s bill of perhaps another $100,000 plus.

But it looks like the case is far from over. After the trial, DeWolf and Russ sued the Lipischaks claiming the right to travel over the parcel of land they had lost. As well, they also sued the prior owners of their property for the cost of defending their title and for the loss resulting from the change in the property line.

Windsor lawyer James K. Ball acted for DeWolf at the trial and in the Court of Appeal. In an email last week, he told me “there were no winners in this case.” I tend to agree.

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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