Tuesday, February 10, 2015


Credit: "Neighbors (2013) Poster" by Source. Licensed under Fair use via Wikipedia
If you go by the number of court cases I'm involved in helping folks defend themselves against neighbour actions or lawsuits over fences and shrubberies, you'll realize that the old adage "good fences make good neighbours" is patently false. I've got lots of examples of neighbours taking great offence when one neighbour decides to legally erect a fence along (but usually not even resting on) property lines. Other cases arise when a neighbour decides to trim a tree overhanging her property, or move a couple of shrubberies, or exercise a longstanding right of way over a neighbour's property to get to her own landlocked property.

In a perfect world, any of these actions would involve neighbours calmly and politely talking out their concerns, and not having to resort to hiring me to go to court for them. But of course we don't live in that mythical perfect world. People hold grudges and nurse petty grievances. People act unreasonably, even when their actions and reactions aren't logical and aren't in their own financial and human relationship best interests.

You might think people would carefully consider whether spending $10,000 (or even $40,000) fighting over a shrubbery, and in the process totally poisoning a relationship with a neighbour whose help you might actually need in the future, was really worth it. But we all know that hearts rule rather than heads, and that emotions get the better of people time and time again, even when what they are doing really makes no sense.

And even if sense does later enter into the equation, once they are $10,000 down the legal litigation superhighway, it can be very difficult to put the brakes on that Litigious Lexus. Far easier to keep the pedal to the metal, and burn through another $10,000 in lawyer gas, and then another $10,000.

I'm happy to say my clients don't start frivolous litigation, or take ridiculous actions against their neighbours. I'm not speaking as someone with blinders on. Rather, I just seem to attract those who are getting the short end of the stick. And I refuse to represent anyone who won't listen to at least some reason, because they won't be clients whom I can help. They're still entitled to legal representation, I just don't have to be the one providing it.

So what's to be done when you're on the receiving end of a property neighbour legal dispute in order to minimize cost and hassle?

1. Try to deescalate the dispute before it gets to court. I know this is easier said than done, but many believe court will offer a quick and inexpensive or at least definitive fix to the problem, and usually none of those assumptions are correct. Disputes can drag for years in court, at huge cost, and then the court might not even offer a ruling on all the issues in dispute.

2. Try to keep the dispute in Small Claims Court, where your legal fees will be much lower because the process is much quicker. Unfortunately, Small Claims Court won't determine questions of rights in land itself. It only determines questions of money owed - such as from cutting down a prized tree that the neighbour didn't have the right to cut.

3. Don't try to represent yourself in court on the dispute. I'm not making this suggestion from the perspective of a lawyer who earns his living from clients who hire me to go to court for them, but rather as a person who sees countless courtroom disasters caused by smart people trying to navigate the highly complex legal system by themselves. No one tries to do open heart surgery by themselves. No one with any sense even tries to set a broken bone by themselves. So why try to do the legal equivalent by yourself? The patient is going to die, or at least wind up far sicker than he was before the start of treatment.

4. Keep scrupulous records of all events and interactions with the neighbour and authorities over the issue. Recording names, dates, places and detailed descriptions, including taking photos (and maybe video) are needed. These records will be key to ensuring your evidence of your side of the story is believed in court.

5. Be constantly considering what a reasonable settlement offer would look like right from the start. "Reasonable" means not just to you, but to the neighbour. What's going to be attractive to the neighbour, but still get you at least some of what you want? Because you really, really want to avoid going to court in such matters, and really want to shorten as much as possible the time such a dispute spends dragging through court.

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