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THE CORPORATION OF THE TOWNSHIP OF BROCK
BY-LAW NUMBER 3210-2023
BEING A BY-LAW TO DETERMINE THE APPOINTMENT OF COSTS OF DIVISION
FENCE
WHEREAS Section 11 (3) 7 of the Municipal Act, 2001, S.O. 2001, c.25, as amended,
provides that a lower-tier Town may pass by-laws respecting structures, including
fences and signs;
AND WHEREAS Section 98 (1) and (2) of the Municipal Act, provides that a by-law may
be passed by a municipality stating that the Line Fence Act, R.S.O., Ch. L. 17, as
amended does not apply to all or part of the Town, subject to the continuing applicability
of Section 20 of the Line Fence Act;
AND WHEREAS it is deemed expedient to exclude the Town from the provisions of the
Line Fences Act, R.S.O., Ch. L. 17, as amended;
NOW THEREFORE the Council of the Corporation of the Township of Brock enacts as
follows:
1.0
DEFINITIONS
1.1
In this by-law:
(a) "Act" means the Line Fences Act, R.S.O. 1990, c. L. 17, as amended.
(b) "Actual Cost" means the total of the construction, replacement, maintenance
or repair of a Division Fence and includes the value of the materials used
and the value of the labour performed to complete the work.
(c) "Adjoining Owner" means the person who owns the land abutting the land of
an Owner who wants to build a Division Fence.
(d) "Basic Cost" means the total cost of construction, replacement, maintenance
or repair (as applicable) of a four (4) foot high, 1-1/2-inch mesh, steel chain
link fence.
(e) "Division Fence" means a fence marking the boundary between adjoining
parcels of land.
(f) "Town" means The Corporation of the Township of Brock.
(g) "Owner" means:
1. the registered Owner of the land and/or;
2. a person managing or receiving the rent for land or premises where
more than one person meets the definition of "Owner" in this by-law,
they shall be considered as a single Owner for the purposes of cost
allocation.
(h) "Public Highway" means lands owned by the Town and designated as a
common and Public Highway, including any street, bridge, trestle, viaduct,
or other structure forming part of the highway and, except as otherwise
provided, includes a portion of a highway.
(i) "Public Authority" means the federal or provincial government, crown
agents, school boards and regional municipalities to whom the context can
apply but specifically excludes the Town.
(j) "Unopened Road Allowance" means lands owned by the Town, but which
are not designated as a Public Highway by the enactment of a by-law.
2.0
APPLICABILITY
2.1
From and after the date of enactment of this by-law, the provisions of the Act,
except for Section 20 of the Act, shall no longer apply in the Town.
2.2
The provisions of this by-law do not apply in the following circumstances:
a)
To any lands that constitute a Public Highway, including lands abutting a
Public Highway, that are held as a reserve by a Town or other Public
Authority to separate lands abutting the reserve from the Public
Highway, or to lands that are being held by a Town or other Public
Authority as an unopened road allowance or for future Public Highway
purposes; or
b)
Where an Owner has initiated proceeding under the Act.
3.0
GENERAL PROVISIONS
3.1
An Owner of land may construct, replace, repair, and maintain a Division
Fence.
3.2
Where the Owners of adjoining lands are in agreement or are able to reach an
agreement on the details of construction or maintenance of a Division Fence,
each of them shall construct or maintain a reasonable portion of the Division
Fence, or shall bear such proportion of the cost of any work required in
connection with the construction or maintenance thereof, as is provided for in an
agreement between the Owners, regardless of any provision to the contrary in
this by-law.
3.3
Where the Owners of abutting lands cannot agree or reach an agreement as
referred to in Subsection 3.2 of this by-law, the Owner desiring to construct or
maintain a Division Fence may do so subject to the following requirements:
a) The Owner must deliver a Notice of Intent to the Adjoining Owner by
registered mail, advising of the Owner's intent to construct or maintain the
Division Fence;
b) The Notice of Intent must contain at a minimum, the following information:
i) A copy of three (3) written quotes for the Actual Cost or Basic Cost for
the fencing work to be untaken; and
ii) A paragraph stating that the construction or maintenance of the Division
Fence will commence fourteen (14) business days after the date of
mailing of the Notice of Intent and the Owner may seek a contributory
payment for the work to the Division Fence from the Adjoining
Owner in accordance with this by-law; and
iii) A further paragraph stating that the Adjoining Owner may obtain three
(3) additional quotes for presentation to the Owner no later than ten
(10) business days from the date of mailing of the Notice of Intent;
and
iv) A complete copy of the by-law must be attached to the Notice of Intent.
3.4
Unless otherwise agreed, the Actual Cost for the construction of a Division
Fence shall be paid as follows:
a) the Adjoining Owner shall pay fifty percent (50%) of the Basic Cost
or fifty percent (50%) of the Actual Cost, whichever is the lesser,
having considered all the fencing quotes exchanged; and
b) the Owner desiring to construct or replace the Division Fence shall
pay the balance of the Actual Cost.
3.5
Where a declaration has been registered under the Condominium Act, R.S.O.
1990, C.26 as may be amended from time to time, the condominium corporation
and not the Owners of the individual units shall be deemed to be the Adjoining
Owner of the land described in the declaration for the purpose of this by-law
and,
a) Any payment that the condominium corporation may be responsible
for under this by-law, is a common expense for the purposes of the
Condominium Act; and
b) Any payment to be made to the condominium corporation under this
Act is an asset of the condominium corporation.
3.6
In cases where the cost of replacement/maintenance/repair of an existing
Division Fence is in dispute, the cost shall be apportioned as follows:
a) The Adjoining Owner shall pay fifty percent (50%) of the Basic Cost
or fifty percent (50%) of the Actual Cost, whichever is lesser, having
considered all the fencing quotes exchanged, and
b) The Owner shall pay the balance of the Actual Cost.
3.7
Once a fence has been erected, the cost of repairs or maintenance to the
Division Fence shall be borne equally by the Owner and the Adjoining Owner,
in accordance with section 3.6, save and except for the following exceptions:
a) The cost of repairs to a Division Fence shall be borne by the Owner
if the Owner invitees caused the damage necessitating the repair.
b) The cost of repairs to a Division Fence shall be borne by the
Adjoining
Owner
or
his/her
invitees
caused
the
damage
necessitating the repair.
c) The cost of repairs to the Division Fence shall be borne equally by
the Owner and the Adjoining Owner if the damage necessitating the
repair was caused by natural disaster or ordinary wear and tear.
d) If a tree is displaced by accident, carelessness, negligence, deliberate
intent or otherwise, so as to cause damage to a Division Fence, the
Owner of the land on which the tree stood shall, as his/her sole
expense, remove the tree and repair the fence.
3.8
Where the Town is the Adjoining Owner of lands other than lands as described
in Subsection 2.2 of this by-law, the cost of construction, replacement, repair, or
maintenance of a Division Fence shall be assigned as follows:
a) The Owner shall pay ninety-five (95%) of the cost of work; and
b) The Town shall pay five (5%) of the cost of the work.
3.9
Compliance with this by-law does not exempt an Owner or the Adjoining Owner
from the requirement to comply with the Town Fence By-law or Pool Enclosure
By-law, as amended from time to time.
4.0
ENFORCEMENT
4.1
Any Owner desiring to enforce the provisions of this by-law shall, within ninety
days (90) after completion of the construction of the Division Fence, serve or
cause to be served on the Adjoining Owner a Notice of Compliance by
registered mail requiring that the Adjoining Owner comply with this by-law by
means of payment of that Adjoining Owner's portion of the Basic Cost and if
such compliance does not take place within thirty (30) days after service of the
notice, the Owner may take appropriate proceedings under Part IX of the
Provincial Offences Act, R.S.O. 1990, c.33, as may be amended from time to
time, for an order to recover the proportionate share of the cost of the work from
the Adjoining Owner.
5.0
SEVERABILITY
5.1
Should any provision of this by-law be declared by a court of competent
jurisdiction to be invalid, it shall not affect the validity of this by-law as a whole or
any other part thereof, other than the provision declared to be invalid.
6.0
SHORT TITLE
6.1
This by-law may be cited as the "Division Fence By-law".
7.0
REPEALING SECTION
7.1
None.
8.0
FORCE AND EFFECT
That this by-law shall come into force and effect on the date it is passed.
ENACTED AND PASSED THIS 27TH DAY OF NOVEMBER, 2023.
Mayor
Clerk/Deputy CAO
Walter Schummer
Fernando Lamanna
Original Signed
Original Signed
PROCEDURES FOR
THE DIVISION FENCE BY-LAW
BY-LAW NUMBER 3210-2023
STEP 1:
ATTEMPT TO REACH AN AGREEMENT
Attempt to arrive at an agreement with the adjacent owner regarding the type and cost
sharing of a division fence. It is suggested that every attempt (more than one contact,
and preferably in person) be made prior to proceeding to Step 2.
STEP 2:
NO AGREEMENT - PROCEED AS PER SECTION 3.3 OF BY-LAW
NUMBER 3210-2023
Send a Notice of Intent by registered mail (a sample letter is attached to these
procedures). It is suggested that you also send a copy of the Notice of intent by regular
mail or personal delivery to ensure it is received by the adjacent owner at least fourteen
(14) business days prior to commencing work or signing a contract. The Notice of Intent
must contain, at the minimum, the following information:
1. A copy of three (3) written quotes for the actual cost or basic cost for the
fencing work to be undertaken; and
2. A paragraph stating that "the construction or maintenance of the division
fence will commence fourteen (14) business days after the date of mailing of
this Notice of Intent and the owner may seek a contributory payment for the
work to the division fence from the adjoining owner in accordance with By-law
No. 3210-2023; and
3. A further paragraph stating that the adjoining owner may obtain three (3)
additional quotes for presentation to the owner not later than ten (10)
business days from the date of mailing the Notice of Intent; and
4. A complete copy of the By-Law No. 3210-2023.
If the adjacent owner makes no contact and/or does not make payment, you may
proceed to build the fence upon the expiration of the fourteen (14) business day period.
The fence contractor will have to be paid by you, the owner. You may then proceed to
Step 3.
Note: When the cost of construction or maintenance is in dispute, the cost of a division
fence shall be apportioned as follows:
a) The adjoining owner (person to whom the Notice of Intent is sent) shall pay
fifty percent (50%) of the basic cost* or fifty percent (50%) of the actual cost,
whichever is the lesser, having considered all the fencing quotes exchanged;
and
b) The owner desiring to construct or replace the division fence shall pay the
balance of the actual cost.
∗
Basic cost means the total cost of construction, maintenance, or repair, as
applicable, of a four (4) foot high, 1 1-2-inch mesh, steel chain link fence.
STEP 3:
RECOVERING THE COST OF BUILDING THE FENCE (Section 4.1 of
By-law Number 3210-2023)
If the adjacent owner fails to pay within 90 days of completion of the fence, you must
serve him with a Notice of Compliance by registered mail and regular mail or personal
delivery, requiring him to comply with the by-law (a sample letter is attached to these
procedures). This Notice of Compliance should again set out the provisions of the by-law
and a breakdown of the costs of the fence (including copies of
invoices/estimates/quotes), and must conclude with a request for payment within thirty
(30) days of receipt of the Notice of Compliance.
The Notice of Compliance must also state that if the payment is not received within thirty
(30) days, you may recover the proportionate share of the cost of the work from the
defaulting person. If payment is received, the matter is at an end. If payment is not
received, you may proceed to Step 4.
STEP 4:
INITIATING A PROSECUTION TO RECOVER PROPORTIANATE
SHARE OF COST OF FENCE
If Step 3 is unsuccessful, you may proceed to initiate a prosecution to recover the
proportionate share of the cost of the fence. If you are not familiar with the court process
and the rules of evidence, then you may consider obtaining legal advice to assist in
proceeding with the issuance and prosecution of a charge under the By-Law.
The following is a summary of the process.
1. Compile evidence to support the charge that payment has not been received
from the adjacent landowner (Defendant). You will have to prove that you
correctly followed the steps set out in By-Law No. 3210-2023. Examples of
Evidence may include, but are not limited to:
a) A certified copy of the Division Fence By-Law 3210-2023. You may
obtain a copy from the Clerks Department of the Township of Brock,
located at 1 Cameron Street, Cannington.
b) A copy of the Notice of Intent (Letter #1);
c) A copy of the Notice of Compliance (Letter #2);
d) Quotes obtained for construction of the fences;
e) Photographs detailing completion of the work; and
f) A certified Tax Assessment Roll (to prove ownership of the property).
You may obtain a copy from the Finance Department of the Township
of Brock, located at 1 Cameron Street, Cannington.
2. Attend at The Region of Durham Provincial Offences Court located at the Region
of Durham Provincial Offences Court, 605 Rossland Road East, Lower Level,
Whitby, Ontario and obtain an information (charging document) and Summons
Package.
3. Prepare Information and Summons setting out information such as:
a) The Defendant's name (name of the adjoining property owner);
b) The offence location (address of adjoining property owner) and offence date;
c) The by-law number, including the specific sections contravened, and a
description of the contravention under the By-Law;
d) The Court room and Court Location the summons is returnable to for the first
court appearance by the informant (you) and the Defendant (adjoining
property owner).
The charge is to be made returnable to:
Provincial Offences Court Services
The Regional Municipality of Durham
605 Rossland Road East
Lower Level,
PO Box 740
Whitby, Ontario L1N 0B3
4. Attend the region of Durham Provincial Offences Court at the Region of Durham,
605 Rossland Road East, Lower Level, Whitby, Ontario and appear before a
Justice of the Peace to swear to the contents set out in the
Information/Summons.
5. Return the Summons signed by the Justice of the Peace to the Provincial
Offences Court at the Region of Durham, 605 Rossland Road East, Lower Level,
Whitby, Ontario. Court staff will arrange for Durham Regional Police to serve the
summons on the Defendant, as service of the summons must be done by a
Provincial Offences Officer.
6. Attend Court on the date and time noted on the summons (the first court
appearance date). You and the defendant (adjoining property owner) will be
required to address the Justice of the Peace presiding in court who will make
inquiries as t how the Defendant intends to proceed.
7. If the defendant (adjoining property owner) enters a guilty plea, you will be
required to provide the court with certain facts of the by-law contravention and
submissions as to the penalty (fine amount) you wish the court to impose.
8. If the Defendant (adjoining property owner) intends to plead not guilty, the court
will schedule a Date, Time and Court Room for a Pre-trial to be heard. At the Pre-
Trial, a Justice of the Peace will make inquiries + of both parties (the Informant
and Defendant) to determine:
a) The amount of time required to be set aside for the trail;
b) The number of witnesses anticipated to testify;
c) The length of time required for the trail; and
d) The agreed facts and any issues regarding disclosure (information to
be provided by the Informant to the Defendant upon request, such as:
copies of all relevant evidence on which the Informant intends to
reply, including witness statements, photographs, documentary
evidence, etc.).
The Justice of the Peace will then set a Trial date, Time, and Court Room
for the Trial to be heard.
9. On the Trial Date:
a) Attend Court with your witnesses (witnesses must attend in person as their
evidence CANNOT be introduced via a signed statement) and all other
evidence.
b) Present your evidence and call your witnesses to testify.
c) The defendant has the right to question any witnesses.
d) After you have presented your evidence, the Defendant has the opportunity
to present evidence and witnesses but is not required to do so.
10. After hearing all the evidence, the Justice of the Peace will ask both the
Informant and the Defendant for submissions. This is an opportunity for both
parties to summarize their positions and reasons why a conviction should not be
entered.
11. After hearing all the submissions, the justice of the Peace will render a ruling,
either a conviction against the Defendant, or dismissing the charge.
12. If a conviction is entered, the Court will ask the Informant and then the Defendant
for submissions as to the penalty they feel the court ought to impose.
SAMPLE LETTER #1
LETTER TO ADJOINING PROPERTY OWNER IN ACCORDANCE WITH DIVISION
FENCE BY-LAW
NUMBER 3210-2023
NOTICE OF INTENT
Date:
To:
Dear:
RE:
Notice of Intent
Proposed Fence Between.......
As you are aware, it is our desire to construct a boundary or division fence between your
property and ours. We have expressed this intent to you on several occasions. To date,
we have been unable to reach a satisfactory agreement regarding our sharing the cost
of the proposed fence.
Notwithstanding the lack of agreement, we would like to go ahead with the construction
of the fence in accordance with the Township of Brock's Division Fence By-Law Number
3210-2023, a copy of which is enclosed for your information. Also enclosed are three
quotes for the construction of [describe the type of fence, height, length, etc.] The
proposed fence complies with the Town's Zoning By-Law as well as the Fence By-law
Number 3210-2023 with respect to height.
The Construction of the fence, in accordance with the lowest quote received, will
commence on [insert date - fourteen (14) business days from the date of this notice].
You may also obtain three (3) further quotes and provide us with a copy of them not later
than ten (10) business days from the date of this Notice of Intent and we can then
discuss all of the quotes before making a decision. If we do not hear from you prior to the
expiration of the fourteen (14) business day period, we will go ahead with the
construction of the proposed fence.
We look forward to reaching an amicable agreement.
Yours truly,
SAMPLE LETTER #2
LETTER TO ADJOINING PROPERTY OWNER IN ACCORDANCE WITH DIVISION
FENCE BY-LAW
NUMBER 3210-23
NOTICE OF COMPLIANCE
Date:
To:
Dear:
RE:
Notice of Compliance with Township of Brock's Division Fence By-Law Number
3210-2023
Further to our letter of [insert date], construction of the boundary or division fence
between our properties was completed on [insert date].
The Town of Brock's Division Fence By-Law Number 3210-2023, a copy of which was
previously provided to you, requires that the basic cost of a division fence be shared
between the property owners.
As appointed out in our previous letter, the fence was constructed in accordance with the
lowest of the three (3) quotes received. Enclosed is a copy of the invoice for a total of
$[insert amount]. Your share of the cost is $[insert amount]. Please provide payment of
this amount to us not later than [insert date - 30 days from date of Notice of
Compliance]. If payment is not received within this time frame, we will proceed to recover
your share of the cost through legal action.
We sincerely hope it will not be necessary to proceed further.
Yours truly,