· Small Claims

Being a Good Neighbour

The Civil Code of Québec states that neighbours must accept normal neighbourhood annoyances. However, it also states that such annoyances must not go beyond the limits of normal tolerance. No one need suffer harm because of the ill will, bad faith or gross negligence of a neighbour. 

The provisions of the Civil Code of Québec that concern these matters are intended to keep relations between neighbours as harmonious as possible.

Property limits and boundary determinations

The limits of a property are determined by titles of ownership, cadastral plans and boundary lines. Boundary lines are generally determined by reference marks, which are planted by a land surveyor at the edges of the property and bear his name and registration number. Thus, reference marks are what indicates a property's limits.

The staking of a property translates a land surveyor's opinion as to the property's limits. The land surveyor surveys the land, studies the titles of ownership and the cadastre, and then, among other things, expresses an opinion in the certificate of localization you obtain when you purchase a property.

The staking does not have the same legal value as a determination of the boundaries. If either of the neighbours believes that the stakes do not accurately reflect the limits of their respective properties, each of them may require the other to have the dividing line between their properties rectified. Three scenarios may occur.

First scenario

You and your neighbour agree on the need to have the boundaries between your properties determined and on the choice of a land surveyor.

First of all, the surveyor calls both of you and your witnesses to hearing. Either of you may also be accompanied by an attorney if you so desire. Next, the surveyor studies the cadastre, examines the titles of ownership held by both of you-going back as far as the last century if necessary and studying the limits of the adjacent properties. The surveyor then draws up a report on his operations, which closes with his conclusions as to the common limit between the two properties.

If you and your neighbour accept the conclusions of the land surveyor's report, he will invite both of you to attend, if you desire, the placing of boundary markers.

The surveyor then drafts the minutes of the boundary determination, which are recorded in the land register.

You and your neighbour share equally in paying the land surveyor's remuneration.

Second scenario

You and your neighbour agree on the necessity of having a boundary determination carried out and on the choice of a land surveyor, but not on the conclusions of the land surveyor's report.

In such a case, the court determines the dividing line between your properties. Either you or your neighbour may submit the surveyor's report to the court clerk, together with the statement of claim. In Québec, the Superior Court has jurisdiction in such matters.

Given the complexity of cases of this type, you will usually wish to hire an attorney. As well, there are often long delays, and the amount of the costs varies according to the circumstances.

After the court renders its decision, both you and your neighbour share equally in the boundary determination costs.

Third scenario

Your neighbour refuses to acknowledge the need for a boundary determination.

In such a case, you must send your neighbour a demand letter. You may act alone or through an attorney.

A demand to have the boundaries determined is made by serving a notice containing:

·    your request for a boundary determination and the reasons for it;

·    a description of the lands in question;

·    the name and address of the land surveyor whom you suggest for the boundary determination;

·    information to the effect that an agreement concerning the right to have the boundaries determined and the choice of a land surveyor must be reached within 15 days, failing which you will take your request before the court.

If, after receiving the demand letter, your neighbour consents to a boundary determination and comes to an agreement with you on the choice of a land surveyor, you proceed as described in the First scenario or Second scenario.

If, despite receiving the demand letter, your neighbour refuses to consent to a boundary determination, you may take your case to Superior Court, which will take charge of the matter.

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BEING A GOOD NEIGHBOUR MEANS BEING CONSIDERATE OF OTHERS!

Being a good neighbour, like being polite, means keeping many different things in mind. Some of them are described below.

Access to your property

You must allow a neighbour access to your property if he needs such access for construction or repair work on his property. However, he must first notify you verbally or in writing. He must also repair any damage he may cause, and must restore your property to the condition it was in before he began the work.

Even the best of neighbours may become involved  in mishaps or incidents beyond anyone's control. For example, the wind may blow the roof off a house and onto the neighbour's property; a cow may jump several fences and end up three properties away. In such cases, if the owner of the land on which the objects or animals end up does not immediately return them to their owner, he must allow the owner to search for and recovery them. These objects or animals continue to belong to their original owner, unless he abandons his search, in which case they may become the property of the owner of the land. Otherwise, the owner of the land may force the owner of the objects or animals to remove them and to restore the land to its prior condition.

Encroachment

Sometimes, a person acting in good faith may erect a structure on a parcel of land that belongs to his neighbour. In such a case, the neighbour may request that the person who erected the structure either purchase the parcel  of land, or pay compensation for the temporary loss of the use of the land for the period during which the structure remains standing.

If the person's encroachment is considerable or was carried out in bad faith, the person's neighbour may force him either to purchase the parcel of land at its full value, or remove the structure and restore the land to its original condition.

Direct views

One aspect of feeling "at home" is being safe from the prying eyes of neighbours. For this reason, the Civil Code of Québec states hat certain distances with respect to windows or other openings must be complies with.

No person may have direct views-windows or doors with transparent glass-less than 1.50 metre from the dividing line between two properties. This does not apply to views onto public thoroughfares or public parks, or to paneled doors with translucent glass (glass through which objects cannot be clearly distinguished).

Right of way

In some cases, the owner of a parcel of land has no access to a public road or his access is inadequate or impassable. If you are in this position, you may request that a neighbour grant you a right of way in return for compensation that is proportionate to any damage you may cause. You must see to the upkeep of the land and ensure that any damage is kept to an absolute minimum.

If the neighbour refuses to grant you a right of way, you may take your case to court.

Water running off a roof

You must ensure that water, snow or ice from your roof falls on your land only, not on your neighbour's. Where necessary, your neighbour may force you to install a drain pipe in order to keep water from falling on his land.

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Fencing your land

You may enclose your land in any way you wish, by means of walls, ditches, hedges, barriers or any other type of fence. If the fence is situated entirely on your land, that is, not on the dividing line between two properties, you are completely free to choose the type of fence, its height and colour, and the materials from which to build it. You must, however, comply with the municipal by-laws applicable in these matters.

You and your neighbour may agree to install, on the dividing line, a common fence (see below) at a cost to be shared by both of you. In such a case, both of you decide together on what type of fence to put up, what materials to use and what accessories to add.

However, the Civil Code of Québec stipulates that a fence must take into account "the situation and use made of the premises" (Civil Code of Québec, article 1002). For example, a cattle fence must be installed in a neighbourhood where the other property owners have planted shrub hedges. And of course, the municipal by-laws apply in this instance as well.

Even if your neighbour is reluctant, it is possible for you to oblige him to pay half the cost of installing a fence on the dividing line. But do attempt to reach an agreement with him first.

Common fences

Even if erected by only one property owner, a fence situated on the dividing line between two properties is presumed to be a common fence, which means that it is considered the common property of both property owners.

A wall that is shared by and that separates two buildings is also presumed to be a common wall. Where two buildings are of unequal height, the wall ceases to be common at the highest point of the lower building.

The cost of maintaining repairing and rebuilding a common wall must be borne by both property owners.

An owner may surrender his right to the wall, thus freeing himself from the obligation of contributing to such costs, by filing a notice to that effect with the registry office and sending a copy to the other land owner. The notice means that the owner gives up his right to make use of the wall.

Trees

If the branches or roots of one of your trees extend over onto the neighbour's property and cause him major problems, the neighbour may request that you cut back the branches or roots. If you refuse, he may file an injunction compelling you to do so, provided that he has first sent you a demand letter. If one of your trees is threatening to fall onto the neighbour's property, the neighbour may, through the same procedure, compel you to cut the tree down or to shore it up.

When planting trees on your property, avoid planting them under electrical or telephone lines or above underground cables or pipes. Trees that you plant should also be a good distance from the dividing line between two properties, so that neighbours will not be bothered by trees that have grown too big.

Noise

No person may subject his neighbour to intolerable noise. Many municipalities have set a limit on the number of decibels allowed, and impose fines for violations. For instance, if the constant, annoying drone of your ventilation system or heat pump prevents your neighbours from sleeping, you will have to correct the situation. Similarly, if your dog barks loudly or howls at night, you may be forced to have it trained, or to dispose of it.

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The masculine form used refers to either sex.  2nd quarter 1999. Gouvernement du  Québec -  Ministère de la Justice.