fence

[plyrs99]

I have an old fence, definitely over 20+ years, and it is falling apart. The problem is, it is 2 feet over my property line according to my survey, and I am replacing it with a new one. I have owned this place for just over 3 years now
I have heard about some "grandfathering" of property lines over a certain length of time. The fence is also facing a park. How should I proceed with this, and will the city step in and force me to move the fence back? If so, I would have to move a shed, a pond, and cut down two mature trees. Any help would be appreciated...can I just replace the fence in it's current configuration without any issues?

 

[SchlongConery]

If you want to try to grab that land, or build your fence in the same location, this is the time you need to invest $200 in consultation with a real estate lawyer. Don't build or tear down the fence until you get a real, paid-for legal opinion.

If you don't want to bother trying to grab the 2' of land, then just build on your property line and ted down the old fence.

Laws relating to "Adverse Possession" (squatters rights) in Ontario have changed significantly since the Registry/Titles system has gone electronic (to put it simply) around 10 years or more ago.

If it was private land, it used to be that your situation (20 years of using the land) would have likely resulted in you getting possessory title. But since the land titles system has changed the clock starts over and has something to do with your knowledge and belief at either the time the Registry changed to Land Titles or when you purchased the land.

Also, a complication is the fact it is public land. If it were a road or road allowance, you'd be done. But since it is a park things could be different depending on the history of the park's creation etc.

Short answer is that "it depends" and only a lawyer can give you specific advice on your circumstances and that of the title's history.

 

[james t kirk]

I'm not sure I understand....

When you say that the fence is "over the property line", do you mean the existing fence was constructed on YOUR property, or on CITY property (since it's a park). I'm guessing that the fence is on city property.

I can tell you this with 100% certainty. There is no such thing as "grandfathering" of property lines, or "squatter's rights" or any such nonsense - especially when it comes to public land. The property line is where the property line is. If your fence was constructed on someone else's property and that someone else decides you need to move it, you will have to move it.

You could just roll the bones and hope that the city doesn't notice or doesn't care and replace it in its current alignment, but there are no guarantees.

 

[plyrs99]

I'm not sure I understand....

When you say that the fence is "over the property line", do you mean the existing fence was constructed on YOUR property, or on CITY property (since it's a park). I'm guessing that the fence is on city property.

I can tell you this with 100% certainty. There is no such thing as "grandfathering" of property lines, or "squatter's rights" or any such nonsense - especially when it comes to public land. The property line is where the property line is. If your fence was constructed on someone else's property and that someone else decides you need to move it, you will have to move it.

You could just roll the bones and hope that the city doesn't notice or doesn't care and replace it in its current alignment, but there are no guarantees.

Thanks for your replies guys. James T. Kirk, I am saying that obviously, the previous owners constructed the fence roughly two feet past where it says my property line is on my survey. Actually James, there is precedent for grandfathering of land, and in most places, anything over 10-15 years (depends where you are) without dispute will kick it in. Pretty much every house in this area has there fence encroaching on the park/greenbelt. I do know that there is also a distinction between repairing an old fence, and building a new fence. I will be taking the old fence down because it is in state of disrepair, and installing a new one in the same location. I am aware that the city could one day step in and make me move it back, but once again, it would involve a huge undertaking, what with existing mature trees and pre-existing structures in the backyard along the property line...moving my fence back would entail quite some time, money and effort. If they force me to move my fence, I sure as hell will be bringing up every other person along the greenbelt and their fences. They have not come around for over 40 years here and said anything to anyone about their fences, so chances are pretty good they may not start now. The old owners did not even follow setback allowances for the old shed that was here, as it was built right into the fence.

 

[bazokajoe]

I am curious to know why a lawyer didn't catch the fence over the property line during the sale and search of the house?

 

[plyrs99]

I am curious to know why a lawyer didn't catch the fence over the property line during the sale and search of the house?

I wondered the same thing Bazokajoe, definitely not happy about the situation.

 

[bazokajoe]

Real Estate law is so fucked up.

I seen an article on the news one day about guy who lived behind a little strip mall.The mall had trees on the property and they came down during a storm and most of the tree landed on this guys back yard.He asked the mall owner to cut the trees up and remove them.The mall owner refused to pay and said" the trees fell on your property so you have to pay". The house owner checked with a lawyer and the mall owner was right. Poor guy had to pay for the tree removal even though the trees were not originally his.

Nice neighbor huh ?

 

[DanJ]

Real Estate law is so fucked up.

I seen an article on the news one day about guy who lived behind a little strip mall.The mall had trees on the property and they came down during a storm and most of the tree landed on this guys back yard.He asked the mall owner to cut the trees up and remove them.The mall owner refused to pay and said" the trees fell on your property so you have to pay". The house owner checked with a lawyer and the mall owner was right. Poor guy had to pay for the tree removal even though the trees were not originally his.

Nice neighbor huh ?

Yep, however if the tree is still standing and overhanging your yard, you need their permission to trim it back lol.

Regarding the fence issue, I would just replace the fence in it's current alignment. If there is a solid line of fences along that side of the park, it will long ago be assumed that those are the property lines. I can't imagine why the city would ever come along and check that at this point. If it was a private piece of land that somebody might be trying to fit a structure on and the setback isn't jiving with the actual land that's there, that would be a whole 'nother story.

I wouldn't be at all surprised if the majority of properties that border on city owned greenspace haven't encroached on that land. All it really takes is the first person who built a fence when the development was new to either intentionally grab a couple extra feet or make a mistake measuring off the survey and everyone else will just follow along if the survey shows a straight line along all those properties backing onto the park.

 

[red]

Yep, however if the tree is still standing and overhanging your yard, you need their permission to trim it back lol.

Regarding the fence issue, I would just replace the fence in it's current alignment. If there is a solid line of fences along that side of the park, it will long ago be assumed that those are the property lines. I can't imagine why the city would ever come along and check that at this point. If it was a private piece of land that somebody might be trying to fit a structure on and the setback isn't jiving with the actual land that's there, that would be a whole 'nother story.

I wouldn't be at all surprised if the majority of properties that border on city owned greenspace haven't encroached on that land. All it really takes is the first person who built a fence when the development was new to either intentionally grab a couple extra feet or make a mistake measuring off the survey and everyone else will just follow along if the survey shows a straight line along all those properties backing onto the park.

Just get together with the neighbour's and move all the fences out another ten feet.

I read once that adverse possession of crown land takes sixty years. Not sure if correct

 

[Sugar-D]

Just get together with the neighbour's and move all the fences out another ten feet.

I read once that adverse possession of crown land takes sixty years. Not sure if correct

Hmm getting free legal advice from a bunch of random anonymous horny bastards or calling a lawyer.

I'd say stick with the free advice, what's to lose?

Dude if you are worried call a lawyer.

 

[SkyRider]

I spoke to my lawyer ($250 an hour) 4 years ago. Under the old system 10 years without a complaint from the next door neighbor means adverse possession. The problem is if you are asked to show proof that it has been there for 10 years or longer.

 

[red]

Just get together with the neighbour's and move all the fences out another ten feet.

I read once that adverse possession of crown land takes sixty years. Not sure if correct

Hmm getting free legal advice from a bunch of random anonymous horny bastards or calling a lawyer.

I'd say stick with the free advice, what's to lose?

Dude if you are worried call a lawyer.

That was legal advice? Jeez where is my retainer?

 

[DanJ]

Just get together with the neighbour's and move all the fences out another ten feet.

I read once that adverse possession of crown land takes sixty years. Not sure if correct

I don't know if a city owned park qualifies as crown land, no idea. As for the 10 feet, if the original land owners had done that, I bet no one would have been the wiser. It depends on the park layout, size, how many houses in a row, etc. Let's say you have a 5 or 6 acre park in the middle of a subdivision with a couple crescents that back onto it. Let's say there are 5 houses on the back side of the crescent, that have yards that adjoin that park, and that the developer/builder doesn't build a fence to separate the lots from the park. Someone is going to be first to build a fence. If he puts his posts 5 or 10 feet past his lot line, then you know the neighbours on both sides are just going to join onto that fence and extend across the backs of their lots. Especially if the survey shows a straight line across those several lots. If you happen to be the middle guy of 5 lots, and the 2 on either side have put their fences 10 feet past the line into a park, are you going to be that guy that puts his on the line, or are you going to just join the corner posts on either side and build your fence in a straight line?

If it makes the OP feel better to talk to a lawyer, go for it. I can't imagine the scenario that the city all of a sudden shows up with a survey crew and a tape measure after all these years though. If he did move the fence back 2 feet, it might cause someone to question why and open a whole can of worms for the neighbours though.

 

[red]

I was just kidding

 

[Anynym]

First question needs to be: if the fence isn't on your property, why do you believe it's YOUR fence? You need proper legal advice before you tear it down, but you might be able to construct a new fence on your property, or on the property line.

You may also want to consult the relevant Ministry information, and your City. Some samples include:
http://www.mah.gov.on.ca/Page176.aspx
http://www.ofa.on.ca/issues/additional-information/Line-Fences-and-the-Law-in-Ontario
http://www.mah.gov.on.ca/Asset1232.aspx

 

[DanJ]

I was just kidding

Yes, I was aware, but it's also a real scenario.

 

[MissCroft]

I can tell you this with 100% certainty. There is no such thing as "grandfathering" of property lines, or "squatter's rights" or any such nonsense - especially when it comes to public land. The property line is where the property line is.

I have wondered about this as well. Apparently about 3 feet of the property behind mine is technically my property but I was told that because it's been that way for decades, there's nothing I can do. I don't actually want to do anything. Just curious.

 

[John Henry]

Just go ahead and build it where the old one was . It's a park behind you . No neighbours complaining that you took away their property . Beside even if the city saw you replacing your old fence they would think nothing of it . If the city hasn't noticed this before that your fence was on City Property why would they now . Unless you told them and that would be a stupid idea .

I see many people putting up vegetable gardens in their backyards all on city property behind them . They even have fenced in the garden area .

That's what I would do if I were in your situation . Just build it on the same spot .

 

[SkyRider]

Apparently about 3 feet of the property behind mine is technically my property but I was told that because it's been that way for decades, there's nothing I can do.

If you live in the City of Toronto and that 3 feet was already gone for at least 10 years before the new land titles act and you never complained then it is lost because adverse possession. I have a similar situation in reverse and consulted a real estate lawyer ($250 an hour) and that is the advice I was given. If you ever sell your house let the new owner know. BTW: They now do surveys using lasers so they are more accurate than the old fashion tripod stuff.P.S. When I was talking to my lawyer he said he is involved in a 20 year long court case involving a fence and 2 neighbors. That situation has gotten real personal.