Neighbour Disputes in BC: Trees, Fences, Noise and Drainage

Neighbour disputes can feel more personal than almost any other legal problem. You see the other person every day, and a small irritation such as a branch, a barking dog or a fence a few centimetres over can grow into something that affects how you feel about your home.

BC has no single neighbour law. Depending on the problem, the answer may lie in a city bylaw, your strata's rules, the law of trespass and nuisance, or a court order about where the boundary really is. Matching the problem to the right route usually saves time and money.

The legal ideas behind most neighbour disputes

Most neighbour conflicts in BC are decided under a few basic legal ideas:

• Trespass. Entering or placing something on someone else's land without permission. It can be a person, a structure, or roots and branches in some cases.
• Nuisance. An unreasonable interference with your use and enjoyment of your property, such as persistent noise, smoke, smells or water diverted onto your land. Courts weigh how serious and how frequent the interference is against what is reasonable between neighbours.
• Negligence. Careless conduct that causes damage, such as a neglected tree that falls on your garage.
• Boundaries and encroachments. Where the property line actually is, which is a question for a survey rather than for where a fence happens to sit.

BC also has the Trespass Act, which makes certain entries an offence. Under section 2, a person commits an offence if they enter enclosed land, or enter or carry on an activity after the occupier has given notice that it is prohibited. Notice can be given orally, in writing, or by a sign posted at the ordinary point of access (section 4). This is mainly an enforcement tool. Under section 8, if someone is convicted, the Provincial Court can order them to pay restitution for the resulting damage or loss.

Trees and hedges

Trees are a common source of neighbour disputes: overhanging branches, roots lifting a driveway, blocked light or views, or a tree that looks unsafe.

Some practical points:

• Check the bylaw first. Many BC municipalities regulate cutting or removing trees on private land, often with permits for trees above a certain size. Pruning or removing a protected tree without a permit can lead to fines, even if it is on your side of the line.
• Boundary trees are harder. A tree whose trunk straddles the property line raises more difficult questions, and removing or heavily cutting it without the neighbour's agreement is risky.
• Self-help has limits. Trimming what crosses onto your land may be possible, but going onto the neighbour's land, damaging the tree's health, or ignoring a bylaw can expose you to a claim.
• Views are rarely protected. Unless something such as a registered covenant or a bylaw applies, a neighbour usually cannot insist on keeping a view.

Fences and encroachments

A fence is not proof of the boundary. If a survey shows that a fence or building is on the wrong side of the line, section 36 of the Property Law Act lets the Supreme Court, on application, declare an easement over the land encroached on, vest that land in the encroaching owner, or order the encroachment removed, with compensation as the court decides.

Shared fence costs are usually a matter of agreement between neighbours, and many municipalities have bylaws on fence height and location. Get a survey before you build a new fence close to the line or argue about where it should go. If you are buying or selling, title, survey and easement questions are worth raising with your real estate lawyer before completion.

Noise, smoke and other nuisances

For ongoing noise, start with the municipal noise bylaw. Bylaw officers can often act faster than a court. In a strata building, the strata's bylaws on noise and nuisance also apply, and disputes about them can go to the Civil Resolution Tribunal (CRT), which has jurisdiction over many claims about the use or enjoyment of a strata lot and the interpretation of strata bylaws (CRTA section 121).

A nuisance lawsuit is usually a last resort, for persistent and serious interference that bylaw enforcement has not fixed. Keep a log with dates, times and what you experienced, and any recordings or witness notes.

Drainage and water damage

Water from a neighbour's downspouts, regrading, a blocked culvert or a leaking pool can cause real damage. Possible claims include nuisance and negligence, and the key evidence often comes from a professional such as a contractor, drainage engineer or surveyor who can explain where the water comes from and why. Take photos during heavy rain and keep repair invoices. Your home insurer may also be involved.

Choosing the right forum

• Bylaw complaint. Often the first step for noise, trees, fences, parking and property maintenance.
• Civil Resolution Tribunal. Strata disputes, and most small claims for debt or damages up to $5,000. Section 118 of the CRTA sets out these claims, and the dollar limit is set by regulation.
• Provincial Court small claims. The Province states that small claims court hears cases worth up to $35,000.
• Supreme Court. Larger claims, and orders about land itself, such as an encroachment order under the Property Law Act or an injunction to stop ongoing interference.

Our article on CRT, small claims or Supreme Court explains the differences in more detail.

Do not let the deadline pass

Under section 6 of the Limitation Act, a court proceeding generally must be started within 2 years after the day the claim is discovered. With ongoing problems such as recurring flooding, the timing analysis can be complicated, so do not wait. Our guide to the two-year limitation period explains the basics, and a well-drafted demand letter is often the step that resolves a neighbour dispute without a lawsuit.

In a dispute with a neighbour? Find out which route fits before it escalates

Our litigation lawyers can review the facts, any survey or title documents and the correspondence so far, explain which forum fits your problem, and help with a demand letter, negotiation, or a claim in the Civil Resolution Tribunal, Provincial Court or Supreme Court.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.