It’s never that simple-part 2

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I wonder if you have had a chance to think about how best to resolve the fence dispute described in my last blog post.

To continue on with our analysis of this dispute, I will now reveal the application judge’s decision.  The judge decided in favour of neighbour R (the neighbour whose easement rights were affected).  The judge saw the fence as an obstruction of R’s use of the easement. The judge ordered that the fence to be removed or modified so that R may have access to the easement.

Do you agree with the judge’s decision? Even though A built the fence entirely on his property, his action interfered with his neigbhour’s legitimate easement rights. Whose rights should prevail? And what do you think of the judge’s solution to the problem, in particular, the modification of the fence so that there is a  compromise to allow A to retain his fence, and R to have access?

As I had mentioned, this case was appealed to the Court of Appeal. I will only say this: there was a dissent.  The entire decision is 114 paragraphs long.  This is not such a simple dispute after all! I will reveal the citation in the next blog post.

 

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