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Line Fences (Ontario)
Legal Guide
Chapter 6 - Enforcement- Filing and Service of Awards
- Default in Obeying Awards
(a) Complete Failure to Perform Work and Self-Help
(b) Failure to Make Payment
(c) Re-attendence of Fence Viewers
(d) Certification by Fence-Viewers
(e) Costs Orders Where No Fence-Viewer Order
(f) Collection as Taxes
(g) Alternative Collection
(h) Registration of Certificates on Land Title
(i) Partial or Inadequate Obeying of Award
(j) Collection of Fence-Viewer and Municipal Fees
1. Filing and Service of Awards
The award when made shall be deposited with the local municipal clerk, who shall make certified copies of it and send them by registered mail to the owners and occupants of the involved lands [s.9(1)]. Where some of the land is in a neighbouring municipality the clerk shall send a certified copy to the clerk of those municipalities [s.9(2)].
The award so mailed is deemed to have been received seven days after mailing, unless otherwise proven [s.9(3)].
2. Default in Obeying Awards
(a) Complete Failure to Perform Work and Self-Help
Where a party completely fails to comply with an award, the other party may serve notice requiring them to obey [s.11(1)]. Notice shall be sent by registered mail or by leaving it with the owner or occupant at their residence, or with any other resident adult [s.11(2)].
If, after that notice, the award is not obeyed within two weeks then "the owner desiring to enforce the award may do or complete the work that the award directs and may immediately institute proceedings to recover the value of the work done or completed and the costs of the proceedings from the owner of the adjoining land" [s.11(3)]. In doing the work the owner desiring to enforce the award may enter onto the neighbour's property "to the extent that it is necessary to do or complete the work, but in making such entry or doing or completing such work shall do no unnecessary spoil or waste" [s.11(4)].
It is an prosecutable offence under the LFA to "obstruct or threaten to obstruct a person entering onto property or doing or completing" the work [s.11(5)].
(b) Failure to Make Payment
Where one party fails to make payments to the other in accordance with the award, the creditor party may notify the owner or occupant of the amount owing. Notice shall be sent by registered mail or by leaving it with the owner or occupant at their residence, or with any other resident adult.
Where the monies are not paid within 28 days of service of the notice, "the designated adjoining owner may institute proceedings to recover the amount and the costs of the proceedings from the other adjoining owner." [s.11(6)]
(c) Reattendence of Fence-Viewers
Where an owner wants to recover monies owed under an award, or to recover the value of work incurred by performing the work themselves, they shall notify the clerk of their desire to have the original three fence-viewers re-attend at the premises. The purpose of the re-attendence to certify the default, and to certify the value of the work done (either pursuant to the award or to remedy non-compliance) [s.11(7)].
The clerk shall send the parties and the fence-viewers a notice setting a time for the re-attendence that is at least a week after the notice [s.11(8)], and no less that 30 days after the request for re-attendence. Notice shall be sent by registered mail or by leaving it with the owner or occupant at their residence, or with any other resident adult [s.11(9)].
Form 7: Clerk's Notice to Parties (Certification)
Form 8: Clerk's Notice to Fence-Viewers (Certification)
If any of the original fence-viewers are not available then the clerk may notify another fence-viewer to attend to act as substitute [s.11(1)].
(d) Certification by Fence-Viewers
The fence-viewers shall re-attend at the location, time and date specified. If they are satisfied that the defaulting party was properly notified of the re-attendence the fence viewers may certify the default and certify the value of the work done for which the other party is due payment, either by reason of doing the work in accordance with the award or by doing it to remedy the default of the other party [s.12(1)]. The certificate shall also make a cost award distributing the costs of the proceedings amongst the parties as they see fit [s.12(2)]. In assessing costs against parties with respect certificates, fence-viewers may include their own fees and municipal fees as set by by-law [Reg 363/13, s.5].
Form 9: Certificate of Default (Work Not Done)
Form 10: Certificate of Default (Payment Not Made)
The certificate shall specify what is due to the non-defaulting owner for costs of the work both in the original award and from work done to remedy default, and shall also specify the fees of the fence-viewers and land surveyors, if any [s.12(3)].
The certificate shall be filed with the clerk, who shall prepare certify copies and send them by registered mail to the parties, and shall forward them to the clerks of any other involved municipalities [s.12(4)].
(e) Costs Orders Where No Fence-Viewer Order
Where after any attendence the fence-viewers do not issue any order on the substantive issues (either award, certificate or determination) they may still make a cost award regarding the cost of the proceeding [s.14(1)]. This costs order shall be filed with the involved municipal clerks in the same fashion as awards are [s.14(2).
In assessing costs against parties even where no order is made, fence-viewers may include their own fees and municipal fees as set by by-law [Reg 363/13, s.5].
(f) Collection as Taxes
The non-defaulting party may apply in writing to the clerk of the municipality in which the defaulting owner's lands are located to have the amount certified placed on the tax rolls to be collected in the same manner as taxes. If the clerk has certified copies of the original award and of the certificate then the clerk may due this. Late payment charges, counting from the date of the application to the clerk, are due in the same fashion as on taxes. The amount due also forms a lien against the property in favour of the non-defaulting party [s.12(5)].
If the municipality has passed a by-law to this effect, the creditor party may also apply to the municipality to have the amount certified paid out to them by the municipality [s.12(6)]. Any amount so paid attracts similar late payments charges and lien status as if the certificate were not paid-out [s.12(7)]. The debtor owner shall be notified of the payment by the municipal treasurer [s.12(8)].
Form 11: Treasurer's Notice of Amount Owed to Municipality by Defaulting Owner
(g) Alternative Collection
In the alternative (not additional too), the creditor owner may file the award and certificate in the local small claims court and enforce it as a judgment of that court [s.12(9)]. Execution methods in the court include garnishment of wages and bank accounts, seizure and sale, and several others.
(h) Registration of Certificates on Land Title
An award and certificate may be registered on title of the property of the defaulting owner [s.15(1)] and acts as a charge on the lands. Registering it on title like this means that the debt runs with the land so that unless it is cleared any purchaser will adopt it as their own. No purchaser wants to do this so they usually require that the debt be discharged before they purchase the land, thus effecting the payment of the debt [s.15(1)].
(i) Partial or Inadequate Obeying of Award
Where an owner feels that work done in attempted satisfaction of an award is "not in compliance with the description of the fence or the location of the fence as specified in the award" then they make give notice to the other owner which shall "specify in what particulars the work done fails to comply with the award", and shall require that that work be done. Notice shall be sent by registered mail or by leaving it with the owner or occupant at their residence, or with any other resident adult.
Unlike the situation where no work is done at all, the owner complaining of inadequate work does not have the right to enter the other's land and themselves dismantle the partial work without further authorization [s.13(1)].
If there is no compliance within two weeks after that notice, then the procedure described above for a re-attendence by fence-viewers may be initiated through the local municipal clerk to view the work and determine whether it complies with the award [s.13(4)].
If they feel it is warranted, the fence-viewers shall "set out their determination with reasons therefor and shall specify the action to be taken by the adjoining owner to make such work comply, the date by which such action shall commence, and the date by which the work shall be completed." [s.13(6)]. Such determination may also include cost awards [s.13(8)], and shall be filed with the involved municipal clerks in the same fashion as awards are [s.13(9)]. In assessing costs against parties in determinations, fence-viewers may include their own fees and municipal fees as set by by-law [Reg 363/13, s.5].
Where there is continued non-compliance after this second fence-viewer attendence and "determination" only then the non-defaulting owner may initiate all of the notice to comply, self-help, fence-viewer certification and collection methods as described above in this section as though the default were that of an original award. [s.13(7)][s.11,12]
(j) Collection of Fence-Viewer and Municipal Fees
If the party who owes such fees under the award or other fence-viewer decision has not paid them, the amount will be placed on the tax roll as unpaid taxes in the municipality where the debtor owns the land. The amount attracts interest in the same amount as late payment charges against municipal taxes, and forms a lien against the property in that amount [s.18(2)(3)]. Where the land is not in an "unorganized territory" (area not municipally incorporated), then the money is treated as a debt owing the municipality, collectable in the same fashion as debts are by private persons (ie. garnishment and other execution in court) [s.18(4)].
Where the involved land is registered as a condominium, any payments that the condominium corporation has to make are deemed "common expenses" of the members [s.1(4)].
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