NEVER FEAR TO NEGOTIATE

"Let us never negotiate out of fear. But let us never fear to negotiate."

-John F. Kennedy, who died on this date in 1963.

BAD FENCES & BAD NEIGHBOURS

“…you shall love your neighbour as yourself.”

-Leviticus 19:18

“Good fences make good neighbours”

-17’th century proverb

Algernon: “Got nice neighbours in your part of Shropshire?”

          Jack:     “Perfectly horrid! Never speak to one of them.”

-Oscar Wilde. “The Importance of Being Earnest”, Act I.

The above quotations suggest two things: The first is that good neighbourly relations have taken a turn for the worse over the last few millennia. The second, which is probably closer to the truth, is this:  Getting along with our neighbours does not come naturally. Therefore, we may need to physically separate ourselves from our neighbours in order to get along with them and, even then,  we may still fail.

I would like to think that I know something about the topic of neighbourly relations gone sour. Although my own minor personal neighbour disputes of the past were generally of the “hey, can you turn your music down?” variety, my experiences as a lawyer and a mediator have provided me with some useful insights into the evolution and resolution of serious neighbour disputes that can easily become the subject of prolonged litigation and even violence.

An area that is particularly ripe for conflict is when one neighbour’s fence encroaches onto the other neighbour’s land. In other words, the fence is over the boundary line (what I would call a “bad fence”). In many, but not all, cases this can lead to the encroaching neighbour being in the position to validly claim that she or he has acquired "adverse possession" (a.k.a. squatter’s rights) over the neighbour’s land enclosed by the fence. In many of these situations no one notices or no one cares for many years. However, should the situation change (for example, if one neighbour obtains a new survey, often in the context of planned renovations, or a new neighbour appears on the scene), then proximity can quickly breed contempt.

Should you find yourself in such a predicament, no matter which “side of the fence” you might find yourself on, here are some practical suggestions: 

• Never take matters into your own hands – I can’t stress this enough. For example, if your new survey shows that your neighbour’s fence is encroaching onto your property, don’t take it upon yourself to move it or take it down. Nothing will attract the ire of the court or your neighbour more than a self-help remedy, even if you believe you are in the right.

• Get legal advice as soon as possible. As soon as you discover that something is askew, consult a lawyer who is knowledgeable about real property law. In many situations time is of the essence (i.e, a deadline for commencing a lawsuit to preserve your legal rights may soon run out, or your neighbour is about to ignore my first suggestion above). You need to know your legal rights as quickly as possible. As well, be sure to discuss with your lawyer the subject of title insurance, which you may have purchased at the same time you purchased your home. It may prove valuable in such a situation.

• If at all possible, try to reach a resolution directly with your neighbour. Unless absolutely necessary, starting a lawsuit or even sending a lawyer’s letter may sour things for good. Remember, in all likelihood you will have to live next door to this person for the foreseeable future. If you are embroiled in litigation, how will it feel to come home from work everyday and have to literally face an adversary in the next yard or to be separated from her by just a thin party wall? In most cases even divorcing spouses have more physical distance from each other. Unless there is a propensity for violence, try to calmly talk to your neighbour about the problem. However, I recommend that each of your lawyers “paper” any agreement in principle you might work out in order avoid future misunderstandings and to ensure that your settlement complies with the law.

• Consider mediation. If a one-on-one meeting is practically impossible, or it did not have a positive outcome, discuss with your lawyer the possibility of a settlement meeting conducted by a neutral mediator who is trained in helping parties resolve disputes. In my experience, many neighbour disputes are resolved at a mediation.

• If all else fails? If you are sued or have decided that you must sue, never lose sight of the following: Litigation is expensive, stressful, uncertain and public. Litigation also has a strange way of making people more entrenched in their positions. Don’t expect that your neighbour is eventually going to get fed up and move away. Chances are he or she isn’t going anywhere. The old notion of a “man’s home is his castle” is apt. Therefore, you should continue to negotiate whenever possible whether through your lawyers or at mediation, or both (there can potentially be more than one mediation session). Negotiation is not a sign of weakness; it is a sign of sanity. Also consider the possibility of letting an arbitrator ultimately decide your case if you cannot settle it as opposed to a judge. In many situations arbitration can prove less expensive, you have input into the choice of the arbitrator (unlike a trial judge) and the hearing and the result are not open to the public.

Finally, is it true that good fences make good neighbours? My view is that while even a properly placed, properly sized and municipally compliant fence can’t make anyone good, it can’t hurt and it can save you a great deal of grief, time and money.