Sharing a property line with someone else can lead to disputes. Here’s a few common neighbour disputes and what you can do about them.
Neighbours are an inevitable part of life. Unless you’ve managed to escape somewhere far off the grid! Sometimes, neighbours become great friends. Other times, the relationship ends in neighbour disputes.
A previous LawNow article covered common neighbour disputes and solutions, including issues about clearing snow, noise, and messy yards and garbage. In this article, we’ll tackle a few more common neighbour disputes – trespassing, overhanging trees, and smoking or vaping – and what you can do about them.
Coming Onto Property Without Permission
Your kid’s ball flies over the fence. Your cattle stray onto your neighbour’s fields. You build a structure that encroaches on your neighbour’s property. Regardless of your intentions, trespass occurs when you or something you control crosses onto someone else’s property without permission and causes harm. Another previous LawNow article discusses trespass in more detail.
So, what to do? For both the trespasser and trespassed, talking to each other is always an easy, practical first step, if safe to do so. If your kid’s ball goes over the fence, ask your neighbour if they can pass it back rather than just wandering into their yard. If your neighbour’s cattle crossed into your fields and caused damage, talk to your neighbour about your concerns. If your neighbour built a structure that comes onto your property, you can ask them to remove it.
If talking is not safe or effective, you can call the police about the trespasser. If there are disputes about where the property line is – aka questions about whether someone or something is actually trespassing – you may need to hire a land surveyor or get advice from a lawyer.
Going to court may also be an option. An injunction is a temporary court order stopping someone from doing what they are doing. For example, if your neighbour is in the process of cutting down trees on your property, you may be able to go to court quickly to get an injunction ordering them to stop. To get an injunction against someone, you must prove three things to the court:
- There is a serious issue to be tried, such as a trespass.
- You will suffer irreparable harm if the injunction is not granted, such as loss of your trees.
- The balance of convenience weighs in favour of granting the injunction. In other words, the court considers who would suffer the greater harm from granting or refusing the injunction.
The court can also order someone to remove a structure that is encroaching on someone’s property or to pay for damages to someone else’s property due to the trespass.
Overhanging Trees or Shrubs
A person’s trees or shrubs crossing onto their neighbour’s property is one form of trespass. Going onto that property to cut down the trees is also trespass!
Last year, a West Vancouver homeowner was in hot water for sneaking onto his neighbour’s property and cutting off the tops of his neighbour’s cedar trees while the neighbours were on vacation. Why did he do it? Because his neighbour’s trees were blocking the ocean view from his multi-million-dollar property. The consequences? The court ordered the homeowner to pay his neighbour $18,175 in general and special damages, and $30,000 in punitive damages (meant to punish the payor for their actions), plus interest. The court also ordered the homeowner not to enter his neighbours’ property or contact them.
In another case, a homeowner had someone not trained in tree pruning cut the overhanging branches up to the property line. While the homeowner did not enter onto their neighbour’s property, the trimming jeopardized the health of the tree and ruined it’s aesthetic. The court recognized there are limits to which a trespasser is required to restore land to its previous condition. The court must consider what is reasonable, practical and fair in each situation. In that case, the court awarded the neighbour $2000 for their loss.
So, what to do? If your neighbour’s trees are overhanging, talk to them. Maybe you can figure out a solution, such as having a professional arborist come in to trim the tree in a way that will not harm the tree. If you take matters into your own hands, you may be setting yourself up for a lawsuit, depending on the damage you cause. Your neighbour may be able to sue you for special damages (money they spend to correct the issue) or general damages (for loss of amenities).
Smoking or Vaping
You are sitting in your backyard and smell someone smoking or vaping nearby. Can you do anything about it?
It depends where the person is smoking or vaping. There are provincial laws and local bylaws that govern where a person can smoke or vape in public places in Alberta. The Tobacco, Smoking and Vaping Reduction Act bans smoking or vaping in public places such as hospitals, childcare facilities, schools, workplaces, public transportation, vehicles with minors, playgrounds, etc. Smoking or vaping is also not allowed within five metres of doorways, windows, air intakes, etc.
The Act does not apply to private residences. However, landlords, property managers and condominium boards may have rules about smoking or vaping in units and common property.
So, what to do? If you have concerns about someone smoking or vaping, you can talk to that person directly. If that does not resolve the issue, you can make a complaint to your landlord, property manager, condo board or local bylaw enforcement office. For more information about the laws that apply where you live, contact your local government office.
To learn more about some of your rights within your own property, read the LawNow article Rights Within Your Property: Did you know?
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The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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