Fences

Step 1: Attempt to reach agreement

Discuss the type and cost of the division fence with the adjoining property owner. If you cannot reach an agreement, proceed to Step 2.

Step 2: Proceed per By-law

While not required, you can choose to use a lawyer or paralegal to ensure compliance with the Division Fence Cost Sharing By-law.

Before you start any work

At least 19 days before starting any work or signing an agreement for the fence, send a notice to the adjoining owner by registered mail.

The notice should include:

• your intent to build or repair the division fence
• a copy of the Division Fence Cost Sharing By-law
• a cost breakdown (including two or more copies of any estimates)
• your payment request (calculated as per the By-law)

Whether or not the adjoining property owner pays, you may construct the fence after the 19-day period. Pay for the construction or repair of the fence, and then proceed to Step 3.

Step 3: Recovering the costs

If the adjoining property owner doesn't pay within 90 days after the completion of the fence, you must send another notice by registered mail that requires the adjoining owner to comply with the By-law.

This notice should include:

• the provisions of the By-law
• the breakdown of the costs of the fence (including copies of invoices and estimates)
• a request for payment within 30 days of receiving the notice

The notice must also state that if the payment is not received within 30 days, you may take appropriate actions under Part IX of the Provincial Offences Act to recover the proportionate share of the work's cost from the defaulting adjoining owner.

If payment is received, the matter is at an end. If you do not receive payment, you may proceed to Step 4.

Step 4: No payment, obtaining court order

Attend at the court at 605 Rossland Road East, Whitby, and complete a statement that you will sign in front of a Justice of the Peace. This statement should briefly set out the facts and end with a request that the court make an order that the adjoining owner pay their proportionate share of the cost of the work.

The police will serve the statement on the adjoining owner with a summons to appear in court. You may proceed to Step 5.

Step 5: Your court date

On the court date, the adjoining owner will be asked if they wish to dispute the order. If they do, a trial will be held. You will have to prove that you correctly followed the procedural steps in the By-law. In that event, the order will be granted and the adjoining owner will have a certain amount of time to pay.

There is no defence as long as you've followed the steps in the By-law. When payment is made, the matter is at an end. If payment is not made, you may proceed to Step 6.

Step 6: Enforcing your court order

Other than your time, there are no costs involved in the process unless you chose to use a lawyer or paralegal to ensure compliance with the By-law in Step 2.

If the adjoining owner continues to default their obligations under the By-law, you can enforce the court order by garnishing wages or instructing a bailiff to seize assets. You must get a Certificate of Default from the court at 605 Rossland Road East, Whitby, and file it with the Small Claims Court.

While there are small fees involved through the Small Claims Court, these costs are added to the debt that is recoverable from the adjoining owner.

The administrative staff at the Small Claims Court cannot give legal advice, but can give you procedural assistance with any step in the process.