It’s never that simple….

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Before law school, I had no idea how complicated the law is. I used to think that given a common, everyday dispute, I would be able to come up with reasons, usually based on common sense on how to resolve a dispute. And of course my reasons would agree with those of the judge’s. I believed in absolute right and wrong. I thought rationality is objective. For most everyday disputes, surely there would be a “right answer” on how a case would be decided!

I no longer rely on common sense.  I have now come to realize that disputes which seem simple on the surface may be more complicated than expected.

Here is a fence dispute which I think illustrates this point quite well.

Two neighbours, A and R,  live next door to each other. Their houses are 4 feet apart.

There is a mutual easement (granted by deed) for maintenance and repairs to the buildings. The land subject to the easement runs from the front corners to the back corners of the houses.

Neighbour A  built a fence separating the front yards. Fence is on A’s side of the lot line. Fence begins at the sidewalk, and ends 2.5 inches in front of the land subject to easement.

The fence reduced the original four foot wide access to the easement to 26 inches, with the result that R cannot fit a 28 inch wheelbarrow through, or any equipment wider than 26 inches.

Originally, there was access to the backyard on the non-easement side of the houses. However, a previous owner of R’s house built a patio and deck such that the access on that side of the house was blocked. Hence, R can no longer access the backyard with equipment through that side of the house.

R decided to go to court to ask for an injunction to restrain A from obstructing his access to the easement.

So, without doing any legal research, how would you resolve this dispute? What are the issues here?  What are your reasons? Who should be the “winner” in this case? Is there a solution where both neighbours “win”?

I won’t divulge the case citation just yet. I’ll just say this went to the Court of Appeal, where there was a majority and and a dissent, totaling 115 paragraphs of legal analysis.

 

 

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