Would you believe...!

lucyFebruary 28, 2009

Hi, this is from the Toronto Star this a.m. Maybe it'll put some things in perspective!

"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 $46,500 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 $59,000 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 about $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.

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So instead of paying them $1 and geting the land back, they lose the the land and it costs them $100k.

    Bookmark   February 28, 2009 at 10:12AM
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i wonder how long it will take before the folks on this board crop up to sceam there is no such thing as adverse possession? cause most any time questions about somethign like this come up they make it clear it does not exist, at least in teh case of a fence not on the line.

    Bookmark   February 28, 2009 at 11:08AM
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It does go to show, do your own due diligence, and don't let these things lie, as time was the factor there.

I don't know if it's adverse possession or not but I know lots of cases similar to this, sometimes on public sort of land where continuous occupation allows you to apply for possession. Most legal decisions in one country, at least in the western hemisphere, have an impact on other countries' legal decisions.

    Bookmark   February 28, 2009 at 3:55PM
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I don't get Joed's comment. They had the option of paying $1K and still giving up the land: " 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."
Pretty brutal case. We moved our fence back to the property line this year, but the fence had obviously been in the wrong place for a very long time. Luckily, we have excellent neighbors who were not interested in taking what did not belong to them.

    Bookmark   March 4, 2009 at 2:44PM
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it meant pay Cantera $1.00 and give him back teh strip of land, not that the people would get it back.

    Bookmark   March 4, 2009 at 6:01PM
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In our area, there is a required fence setback of 3 feet from the line unless otherwise approaved through a varience process.

    Bookmark   March 6, 2009 at 6:44PM
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Boy do I appreciate my neighbor!

When we moved in here he was the one that told me our fence was not on the property line and that we owned much more of his yard than we previously thought. We had paid cash for the property and didn't think a survey was necessary.

I immediately had a proper survey done and had the fence moved, but had he not brought it up in the first place we might not have known for years!

    Bookmark   March 9, 2009 at 12:17PM
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I think there was a similar law in force some years ago re keeping clear title to nonpublic rights of way on even government properties. When I lived in Halifax all the uncontrolled roadways through Navy or other such Federal property would be closed one day a year by public notice and barriers set up to stop all foot or vehicle traffic to demonstrate possession and exclusive control. Don't think the city's lawyers or anyone else ever got close to grabbing anything before the law was changed.

    Bookmark   March 19, 2009 at 7:32PM
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I dunno, I think a piece of land that has been surveyed, has specific boundries. If the person that owns the land within those defined boundries pays their yearly taxes on it, I don't think it should be considered abandoned and awarded to someone else. I kind of look at it like a car. If you buy a car and make the payments but a neighbor comes out every day and washes a fender and waxes it, touches it up, doesn't make it his fender after a period of time.

    Bookmark   April 6, 2009 at 9:37PM
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