My fence is almost 2 feet inside my property line. Can my neighbour restrict me from accessing that 2 feet in Ontario Canada

Question

The fence was here when I bought. My neighbour bought just after me. We haven’t been here a year yet. She just had her property surveyed and the fence is inside my property line. My property actually continues another 2 feet on the other side of the fence. I want to maintain it and keep things from growing up the fence on that side but my neighbour is being difficult

Answer 1

It's YOUR fence

Since your fence is entirely on your property, it is definitely your fence. There's no question of that. It's not a joint fence. It's yours.

Remove the fence!

Since the fence impedes your access to your own land, simply remove it.

Now, your neighbor isn't going to be happy at all about that. Your neighbor gets a lot of benefit from your fence, not least, use of your 2 feet of property.

Your neighbor will, at that point, be at liberty to install their own fence, on their own property, at their own expense.

More realistically, the neighbor may decide to "sober up" and actually work with you about realistic alternatives. They may also go crazy and get malicious - but you don't owe them a fence.

I would store the removed fence parts on your property for awhile, so that you have the option to reinstall it if negotiations go well. Either that, or destroy it or haul it away. Do not set it out on the curb for trash pickup, or the neighbor will take it and have a free fence!

Answer 2

Your neighbor can restrict your access to her property, but that's about it. So long as you're able to access the 2-foot wide strip from your own land or from public land, your neighbor has no means to restrict you from accessing your own property. The only way this could work for her is if that strip of land is only accessible from her property (like if the strip was bordered by the fence on one side and her property on the other three) - she could potentially deny you the ability to walk across her land to access the strip.

Your neighbor can only control access to her own land, but not your land or public land. So long as you're not setting foot on her land, she has no authority to deny you access to land she does not own.

Answer 3

Your neighbor, if the fence is in place for a sufficiently long period of time, could claim title to the land on their side of the fence under the doctrine of adverse possession.

Generally speaking, to establish an adverse possession claim one must show that for a period of ten years prior to the present (tacking time periods of prior owners of the respective properties), the person claiming title by adverse possession:

• had actual possession of the property in issue;

• intended to exclude the true owner from possession of his property; and

• effectively excluded the true owner from possession of his property.

(Source, citing the Ontario Superior Court case of Jamnisek v. The Estate of Gordan A. Wyant which is factually similar to the OP.)

If the conditions for adverse possession have not been established, however, you can tear down your own fence (or put a gate in it) and use that property. Indeed, you should do so on a regular basis, and document your doing so, to prevent an adverse possession claim from ripening if you don't move your fence.

I am currently litigating, and have litigated in the past, similar claims under Colorado law.