The Division Fence By-law outlines:
- the basic costs that adjoining property owners are responsible for in relation to a new division fence
- what process to follow, under the Provincial Offences Act, when an adjoining owner defaults on payment
- the repair and reconstruction requirements of existing division fences
What you should know...
Neighbours must share the "basic cost" of constructing a new division fence. This basic cost is defined as the cost of erecting a 4 foot chain link fence to minimum construction standards. The cost to repair, maintain or reconstruct existing division fences must be shared equally by both property owners, based upon the type of fence in place.
In order to use the by-law, a property owner must do the following:
- Serve the neighbour with a notice advising of their intent to construct/repair a fence via registered mail at least 14 days in advance of the construction/repair of the fence. This notice should provide the basic cost of constructing a new division fence (4 foot chain link fence). Property owners are advised to get multiple quotes and to use the least expensive quote.
- Should the neighbours agree to build the fence, a written agreement should be completed by both parties.
- Should one neighbour fail to pay the cost of a basic fence, the other owner, after serving the notice referenced in step 1 may proceed to build the fence and then issue a second notice to the neighbour.
- The second notice should be issued within 90 days of the completion of the construction/repair of the fence and must be served by registered mail.
- The second notice must provide 30 days for the neighbour to pay the other neighbour half of the cost of a basic fence.
Should one neighbour continue to refuse to pay the other neighbour, the neighbour who paid for the fence may proceed under the Provincial Offences Act to have a Justice of the Peace enforce the provisions of the by-law. In order to begin this process, the owner of the fence must do the following:
- Pick-up the required forms (referred to as an Information and any required Summons) from the Ontario Court of Justice at 605 Rossland Road East, Whitby, ON.
- Complete the Information and Summons and present both documents to a Justice of the Peace for review and consideration.
- If the Justice of the Peace is satisfied that the owner has followed the steps outlined in the by-law, the Justice of the Peace may accept the Information and sign the Summons.
- The owner is then required to provide the Summons to the Town of Whitby By-law Services for service on the adjacent property owner.
- The Summons will require the neighbour to appear in court to answer to the legal action.
- The matter will then proceed to court where the Justice of the Peace has the authority to award the fence owner with a judgement requiring the neighbour to pay half the costs of a basic fence. Any decision reached regarding a fine is enforceable through small claims court.
Should the neighbour continue to refuse to make payment of the award issued by the Justice of the Peace, then the fence owner must do the following:
- Initiate an action in small claims court.
- Seek enforcement of the outstanding judgement from the neighbour.
Still have questions?
If you have any questions regarding fence cost sharing, please contact By-law Services at 905.430.4345 or by email.