MoneySense Magazine, December/January 2012
Handling the jerk next door
Ugly fences, blocked driveways, annoying pets. It’s amazing how quickly neighbourly love can turn into hate. Here’s how to patch things up without breaking the bank
This article was first published in the December/January 2012 issue of MoneySense.
When they moved in two years ago, Peter and Maureen Fabini loved everything about their two-storey, four-bedroom home—the leafy street, the good schools and the snug location on a quiet crescent in St. Catharines, Ont. It was perfect except for one thing: the double cedar hedge separating their house from their neighbour’s. It sat right between the two driveways and the overgrown branches scratched Peter’s car. It also restricted the amount of space their two sons had for playing with friends.
So on Father’s Day that year, Maureen bought Peter a chainsaw. (We’ve changed their names to protect their privacy.) The following weekend, believing that one line of hedges was on his property, Peter cut them down.
The Fabinis’ neighbours, the Richardsons, were livid. They had planted the cedars 20 years ago for the privacy—which was now gone. The Fabinis then proceeded to put up a chain link fence on what they believed to be their side of the property line—right up against the remaining hedge. Fuming, the Richardsons filed a lawsuit. They wanted the unsightly fence to come down, and they wanted to be compensated for the destruction of their hedge.
What happened next? After a year of legal battles, the Fabinis were forced to take down the fence. Turns out that neither the hedge nor the fence were on their property: they were on the Richardsons’ side. Peter had made a huge mistake by neglecting to check where the boundary line was between the two properties. The total cost to the Fabinis for their hasty action? About $4,000 in damages to the Richardsons, plus a whopping $11,000 to cover the legal costs for both sides—a costly price for a Father’s Day gift.
The Fabinis’ story is as common as it is sad. Lawyers can tell you endless stories about the feuds they’ve seen between neighbours—most arising from a simple lack of communication. “For most people, their home is their castle,” says Lyon Gilbert, a dispute resolution expert and private judge in Ottawa. “Their first thought when a dispute arises is often, ‘Why should I put up with it?’” Neighbours rarely do enough research before acting. Like the Fabinis, they make false assumptions about property boundaries, often leading to years of bad blood.
Whatever the reason—noisy neighbours, parking issues from a mutual driveway, piles of unsightly junk propped against a shared fence—it’s short-sighted to endanger good neighbourly relations for the sake of being right. “We tend to take adversarial positions from the beginning,” says Colm Brannigan, a mediator in Brampton, Ont., who helps homeowners resolve disputes. “Most people talk to their neighbour, but they don’t really listen or communicate effectively and that escalates the dispute. That’s sad because chances are, unless you’re willing to move, you’ll have bad relations with your neighbour for years to come. Nobody wants that.”
If you’ve got a festering dispute with your neighbour, or if you’re a happy homeowner who wants to avoid one in the future, we can help. By following the tips below, you can ensure that you never become embroiled in a lengthy—and costly—court battle with the people nearest you.
Size up the situation
Before you approach a neighbour who’s upsetting you, identify the specific problem. Don’t just say, “My neighbour is an idiot because he insists on having trees near the property line.” Stick to the facts. In the Fabinis’ case, Peter might have put it this way: “The hedge between our properties is an obstacle to my using the driveway, and I have to constantly touch up the scratches on my car. It also interferes with my kids playing with their friends.”
Then consider what you’d like to happen: “I’d like for us both to trim the hedges in a way that maintains your privacy, but also limits the damage to my car and ensures my sons can use the driveway.”
Talk it through
Once you understand the issue clearly, approach your neighbour politely. “You don’t get people to give you something by calling them jerks,” says Fred Berenbaum, a Toronto-based mediator. State your concerns without blame, and make sure you really understand what he’s saying in response. Try to come to a mutual solution before you take any other action.
For instance, if you’d like to put up a fence and would like your neighbour to pay part of the cost, make sure he agrees to do so before you start building it, says Berenbaum. “If he agrees to pay only $1,000 and the fence ends up costing $3,000, he may decide not to split the difference. In that case, let it go. It’s a lesson learned. Next time, get an agreement that’s iron-clad before you do anything.”
The good news is that settling the dispute amongst yourselves often means there is no cost in time or money. Best of all, you maintain a good relationship with your neighbour. “Neighbours are all about enduring relationships,” says Gilbert, the dispute resolution expert. “Resolving your issue with your neighbour will have long-lasting benefits.”
Get a free community mediator
If you and your neighbour can’t solve the dispute on your own, you may want to try mediation. Mediators are neutral third parties who aim to have the parties reach a solution that’s beneficial for both sides. There’s no best-case or worst-case scenario: instead, the mediated settlement is usually “good enough” for both parties to feel they got something out of the proceedings.
The session usually takes less than a day, and the results are amazingly effective. “With mediation, it’s a win-win for both parties,” says Gilbert. “Both parties usually walk away feeling good about things.”
In fact, more than 80% of all disputes that go to mediation are settled before going to court, and another 5% resolve shortly afterwards, once the feuding neighbours have had time to think things over. If the parties come to terms, they sign a mediation agreement: it isn’t a legally binding contract, but both sides are highly likely to abide by it. If the parties can’t agree, the mediator summarizes the progress they’ve made, and they can agree to meet again. If the case ends up going to trial, these discussions won’t be used as evidence in court.
Some communities offer free mediation services that are handled by volunteers. “We hand-pick our volunteers, and they’re broadly representative of the neighbourhood,” says Peter Bruer, manager of conflict resolution training at St. Stephen’s Community House in Toronto. “We walk them through a structured approach to resolving issues. The aim is to mend relationships and help neighbours figure out how to accommodate each other.” The volunteers typically meet with each neighbour separately first, and then schedule a session where everyone sits down to work out an agreement.
Condo boards also provide free mediation services. “There’s a joke in the condo community that all disputes are about one of three things: people, pets or parking,” says Jennifer Bell, a mediator with Placet Dispute Resolution in Toronto, a firm experienced in mediating disputes between condo neighbours. In some provinces, condo disputes must be mediated before any party seeks legal action. The condo board’s lawyers pick a mediator through the ADR Institute of Canada, an industry group that promotes dispute resolution services. Such mediators charge between $200 and $800 an hour, and the cost is fully paid by the condo board. “The mediation session is usually attended by condo board directors, the property manager and the owners of the units,” says Bell. “We take the problem and try to make sense of it for everyone. It’s a team approach, and it works really well.”
One condo mediation case in Oakville, Ont., this year involved 55-year-old Marie Cross and her husband Max. The couple moved into their unit in July and brought along their golden retriever, Blackie, even though the building has a no-pet policy. After several complaints from the neighbours, the condo board asked the Crosses to either get rid of the dog or sell their unit and move.
Marie refused, claiming that her real estate agent had failed to disclose the building’s no-pet policy. More important, she said the dog was a therapeutic tool for a severe anxiety disorder she suffers from.
Marie’s claim that she is disabled made a cut-and-dried case much more complicated. According to the Ontario Human Rights Code, which prevents discrimination on any basis, if Marie is disabled and relies on the dog for therapy, then she would get to keep Blackie, regardless of condo policy.
A meeting between the Crosses, the condo board of directors and the property manager took place in early November. Five minutes before the meeting was to start, Marie sent notice that she couldn’t attend because she was having a panic attack. (Max attended on her behalf.) Now the case is being mediated, and medical experts are being consulted on two key issues: whether Marie has a genuine disability, and whether the dog is a necessary therapy. Both must be true for Marie to be able to keep the dog—if not, either she or Blackie will have to go.
Hire a mediator
If you live in a city or town that doesn’t offer free mediation services, you and your neighbour may decide to hire one to resolve your dispute. Check the ADR Institute of Canada website for mediators in your area. Figure on paying somewhere between $1,500 and $3,000 for a half-day to full-day session. Most disputes are resolved in that short amount of time. The cost is usually split equally between the two of you and paid to the mediator immediately after the meeting.
Even if you file a lawsuit against your neighbour, your lawyers may recommend that you mediate your dispute before going to court. In fact, this is mandatory in some jurisdictions. The lawyers will pick the mediator, and both you and your neighbour will show up for the session along with your counsel. Having the lawyers there is crucial, because by this point neighbours may no longer be talking to each other. The lawyers act as coaches, and the mediator keeps both sides negotiating until they reach an agreement that pleases both sides.
Take the case of Jim McNeil and Joseph Caragana, two neighbours in downtown Toronto who share a mutual driveway with access to garages at the back of their properties. The arrangement went smoothly until three years ago, when Caragana started a catering business from home. As the business grew, catering trucks would constantly block the driveway—to the point where McNeil’s access to his garage was often blocked.
One weekend, McNeil had enough. He put up a fence right down the driveway on the boundary line—which happened to leave nine feet of space on his side, and only two feet on his neighbour’s side. Caragana was completely cut off from his garage. A furious Caragana took the fence down. Police were called but they categorically told the two neighbours to settle it amongst themselves.
That’s when McNeil sued, seeking an injunction that would prevent Caragana from driving his vehicles on McNeil’s side of the driveway. For his part, Caragana claimed “adverse possession,” meaning that under the law he had acquired the right to use the full driveway because he’d been using it continuously and with no objection from his neighbour for more than 10 years.
The lawyers for McNeil and Caragana scheduled a mediation session. By this time, the two men were barely speaking to each other and both wanted to win at any cost. So the two lawyers consulted with each other and specifically chose a direct, take-control mediator they knew could settle the case. He was tough on both parties, telling them outright, “This is stupid. You’re going to burn through more money than the two feet of property is worth.”
With a lot of convincing from the two lawyers, McNeil and Caragana came up with an agreement. “It was really pretty simple,” says Edwin Upenieks, a lawyer and mediator with Lawrence, Lawrence, Stevenson in Brampton, Ont. “No fences. The two agreed to get along. Neither side would park on the driveway, and both parties will give each other unrestricted access to their garages at all times. Pretty basic stuff really, but enough to get them to agree.”
While such mediations are hugely successful, they are costly. You will be responsible for your lawyer’s fee (about $5,000 to $8,000), the mediator’s fee (split with your neighbour), and any damages you agree to in the mediation session.
Take it to court
If after talking to your neighbour and going through mediation you still can’t come to a mutual agreement, then you have only two choices left. One is to agree to disagree, and simply not talk to each other anymore. The other is to take your neighbour to court.
Court battles can be nasty—make no mistake. “You’ll get cases where a neighbour may be fighting on principle, where someone just won’t settle—no matter what,” says Berenbaum. “They may even prefer to give their money to the lawyer rather than to the other party. Realize that if you go to court, there will be one winner and one loser—no compromises allowed. The judge simply makes a ruling based on the law. It’s black and white.”
Taking your case to court will also cost you thousands of dollars. The size of your claim will dictate which court you end up in. If it’s under a specified limit—$5,000 to $25,000, depending on your province—it will be heard in small claims court, where you plead your own case without a lawyer. If the judge makes an order in your favour, the onus is on you to collect. “You can take the judgment and try to collect, or register a lien against your neighbour’s house or car if they refuse to pay,” says Berenbaum. The main cost will be a small fee for filing the claim, plus the cost of any experts you bring to court to support your case. And while you may get a ruling in your favour and technically “win,” the truth is that you and your neighbour will likely never speak to each other again.
If your claim is more than your province’s limit for small claims, then your case goes to Superior Court where a lawyer will likely represent you. “By the time you get to Superior Court, there is some pretty serious money involved,” says Berenbaum. You may have to spend $10,000 to $15,000 in legal fees, and if you lose, you may even have to pay part or all of your neighbour’s legal fees in addition to any damages. “I know of a lot of fences that cost people $60,000 in litigation fees because of a couple of inches along the property line,” says Berenbaum.
The lesson? Make every effort to settle a dispute sooner rather than later. Your neighbour—and your wallet—will thank you.
MoneySense Magazine, December/January 2012