Do Good Bylaws Make Good Neighbours?

Do Good Bylaws Make Good Neighbours?

July 23, 2015

By Brian Babcock

Co-Authored by Elizabeth McLeod (Law Student, Bora Laskin Faculty of Law)

Summer in Thunder Bay is a time for relaxation, backyard barbeques and enjoying the great outdoors. Given the warm weather, it also happens to be an ideal time for repairing and renovating property as well as maintaining the exterior of your home.

You have your plans, tools and materials and are ready to get to work, but what happens if you need to enter or encroach on your neighbour’s property in order to complete this work? This entry may be in the form of having to place equipment or tools on their property, or if you or workers have to enter the property yourselves- for example because your ladder has to sit on the lawn next door to reach your eavestroughing, or the backhoe operator needs to park on the neighbour’s yard to excavate your weeping tile.

TRESPASS

Every entry onto of private property without permission, no matter how minimal, is a trespass. Trespass occurs even though there may be no actual damage that occurs to the property you enter upon. It is important to be mindful of this when it comes to your neighbours when planning and executing maintenance and repairs. Trespass can lead to a lawsuit in civil courts, or a charge in Provincial Offences Court under the Trespass to Property Act.

If possible, the best way to go about repairs that require using the neighbour’s property is to obtain express consent from the owner of adjoining property for entrance onto their land to the extent required to affect repairs. In the case of real property, a trespasser is one who goes onto the land of another without invitation of any sort and whose presence is either unknown to the owner or, if known, is practically objected to. Obtaining express consent can be a practical way of ensuring that your neighbour is informed and aware that you will be entering their land, to what extent and for how long.

But what if you approach your neighbor and do not get permission?

THUNDER BAY’S GOOD NEIGHBOUR BY-LAW

The Thunder Bay Good Neighbour By-Law provides another possible solution.

Section 132 of the Municipal Act authorizes municipalities to pass by-laws authorizing entry upon adjoining lands by persons who require that access to effect maintenance, repairs or alterations to buildings, fences or other structures, or to trees.

Bylaws are local rules and regulations passed by City Council.

Passed in 2005, the Good Neighbour by-law authorizes entry upon adjoining lands for the purpose of effecting maintenance, repairs or alternations to Structures or trees. In order to benefit from the protection of this bylaw there are a number of steps you must take prior to entering any adjoining lands, they are listed under s.2.03 of the bylaw:

  1. The entry on Adjoining Land is authorized only to the extent necessary to affect maintenance work, repairs or alternations to structures or trees.
  2. Prior to exercising the right of entry, the Owner of Land (on which repairs are being done) must provide to the Owner, and, where the Adjoining Land is not occupied by the Owner, also to the Occupant of the Adjoining Land, seventy- two (72) hours written notice of his or her intention to exercise right of entry. Where the land is not occupied by the Owner (perhaps by a tenant or the owner is located elsewhere), there are alternative ways by which this notice can be served such as mailing notice to the owner as well as informing the occupying tenant.
  3. Where requested by the Owner or Occupant of the Adjoining Land, the person exercising the right of entry under Section 2.01 must provide proper identification.

There are a couple of other important conditions to be met in order to meet the requirements of this by-law for the purpose of entry onto adjacent property:

  • After the entry takes place the Owner who is exercising entry MUST, within a reasonable time after exercising that right of entry, repair any damage caused to the Adjoining Land that occurred while on the property.
  • This by-law is that does not authorize entry within any building. The right of entry provided by this by-law is restricted to entry upon land only.

The result is that if you follow the terms of the by-law, your trespass will not leave you vulnerable to a lawsuit or Provincial Offences Act charge. In addition to the old saying that “good fences make good neighbours”, sometimes good by-laws make good neighbours too.

So go ahead and take care of some maintenance and repairs to your property this summer before it gets too cold. Just remember, if you are going to need to go onto adjacent property to do these repairs, be a good neighbour!