Date Issued: January 26, 2021

File: SC-2020-004901

Type: Small Claims

 

Civil Resolution Tribunal

Indexed as: Ellis v. Dangerfield, 2021 BCCRT 95

Between:

MARION ELLIS

Applicant

And:

CORRISA DANGERFIELD and GORDON MARK DANGERFIELD

RespondentS

REASONS FOR DECISION
Tribunal Member:	Julie K. Gibson

INTRODUCTION

1.      This dispute is about a fence between neighbouring properties.

2.      The applicant Marion Ellis owns a property next door to that of the respondents Corrisa Dangerfield and Gordon Dangerfield. While the Dispute Notice named a “Mark Dangerfield” as a respondent, I find that the correctly named respondent is Gordon Mark Dangerfield. Counsel for Ms. Ellis agreed that the style of cause could be amended to reflect Mr. Dangerfield’s legal name. I have exercised my discretion to amend the style of cause above to name Gordon Mark Dangerfield as respondent rather than Mark Dangerfield.

3.      In 2019, Ms. Ellis had her contractor take down the fence, without consent from the Dangerfields. Ms. Ellis then had her contractor build a new fence. However, part way through the project, a survey revealed that some portions of the new fence encroached on the Dangerfield’s property. When Ms. Ellis asked her contractor to move the fence onto her property, she says the Dangerfields refused to allow him access to the fence and materials on their property.

4.      Ms. Ellis seeks an order that the Dangerfields:

a.    remove the fence materials from their property and return them to her,

b.    if the fence materials are not ordered returned, pay her $4,000 in damages “representing the value of the benefit received by the respondents from the new fence”,

c.    pay her $1,000 in damages for pain and suffering, mental distress and anxiety she says the Dangerfields have caused her, and

d.    remove all wire meshing, structures, materials and other property from the fence so that the panels may be moved by Ms. Ellis’ contractor.

5.      The Dangerfields say they asked Ms. Ellis’ contractor to stop working on the new fence, because the survey showed that some of the new fence was on their property. Subsequently Ms. Ellis’ contractor installed a new line of posts on Ms. Ellis’ property and proposed to take down the new fence and reattach it to those posts. The Dangerfields refuse to have the fence on their property taken down because it replaced the fence that Ms. Ellis removed. Below, I find that the original fence was located on both properties and therefore jointly owned. The Dangerfields are content to have the current fence stay in place. They ask that I dismiss Ms. Ellis’ dispute.

6.      Ms. Ellis is represented by lawyer Declan Redman. Corrisa Dangerfield is the primary respondent representing herself and Gordon Dangerfield.

JURISDICTION AND PROCEDURE

7.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). Section 2 of the CRTA states that the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness, and recognize any relationships between the dispute’s parties that will likely continue after the CRT process has ended.

8.      Section 39 of the CRTA says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary in the interests of justice.

9.      Section 42 of the CRTA says the CRT may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The CRT may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

10.   Where permitted by section 118 of the CRTA, in resolving this dispute the CRT may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the CRT considers appropriate.

Encroachment and the Property Law Act

11.   This dispute raises the issue of encroachment. The Property Law Act (PLA), at section 36(2) says that an owner may apply to the British Columbia Supreme Court (BCSC) to order removal of a fence that encroaches on adjoining land.

12.   The CRT’s jurisdiction is outlined at section 118 of the CRTA, and includes claims for debt or damages, recovery of personal property, specific performance of agreements relating to personal property or services and relief from opposing claims to personal property. Section 118 does not include injunctive relief addressing the real property issue of encroachment, such as ordering an existing fence to be moved: see the non-binding but persuasive decision in Pearson v. Rutherford, 2019 BCCRT 631.

13.   I find that none of the relief sought by Ms. Ellis is real property relief governed by PLA section 36(2). I find her claims are for damages, and for recovery of personal property, being certain panels of fencing that her contractor placed on the Dangerfields’ property. The Dangerfields did not counterclaim. None of my findings below are for remedies listed in s. 36(2) of the PLA. My findings address fence ownership, not encroachment remedies. I find that I have jurisdiction to determine her claims.

ISSUES

14.   The central issue is whether the fence is owned by Ms. Ellis alone, or jointly with the Dangerfields.

15.   Depending on who owns the fence, what remedy is appropriate?

EVIDENCE AND ANALYSIS

16.   In this civil claim, Ms. Ellis as applicant bears the burden of proof on a balance of probabilities. I have reviewed the evidence and submissions but refer to them here only to as I find necessary to explain and give context for my decision.

17.   Based on the documents filed in evidence and some facts agreed between the parties, I find the following:

a.    In the late 1980s, the then owners of Ms. Ellis’ property constructed a fence (original fence) between that property and the property now owned by the Dangerfields.

b.    In October 2019, Ms. Ellis’ contractor, PM, took down the original fence, without the Dangerfields’ agreement. The original fence was, by then, over 30 years old.

c.    Ms. Ellis then had PM begin construction on a new fence (new fence) which was constructed as 4 panels of lattice fencing.

d.    Ms. Ellis consulted Gravity Land Surveying Ltd (Gravity Land), who reported that parts of the new fence were on the Dangerfields’ property. Specifically, 5 fence posts were inside Ms. Ellis’ property line, while 6 fence posts were inside the Dangerfield’s property line, and 1 fence post was on the property line. The parties agree that some of the new fence is on Ms. Ellis’ property, while some is on the Dangerfields’ property.

e.    Ms. Ellis then asked PM to remove those portions of the new fence that were on the Dangerfields’ property and bring those panels onto her property to install them in new posts. The effect would have been to move the fence onto Ms. Ellis’ property entirely, leaving only posts in place of the original fence.

f.     The Dangerfields objected. They asked that PM stop working on the new fence or accessing their property.

Ownership of the Original Fence and the New Fence

18.   Ms. Ellis submits that because the previous owners built the original fence and intended it to sit on their property alone, she became sole owner of the original fence when she purchased the property. I do not agree with this submission, because I find the Gravity Land survey proves joint ownership of both fences.

19.   When a fence straddles a property line, then both landowners have an ownership interest in it. This property interest is based on the fence’s physical location, as revealed by a survey. The BCSC has considered the issue with respect to trees, in Glasshutter v. Bell, 2011 BCSC 1581, see paragraphs 18, 23 and 31.

20.   Here, I find it more likely than not that the original fence was located on Ms. Ellis’ property at some points, and on the Dangerfields’ property at others. I make this finding based on Ms. Ellis’ evidence that she asked PM to build the new fence on the same fence line as the original fence. The Gravity Land survey shows the new fence is located on both properties. I therefore find that the new fence is also jointly owned.

What Remedy Is Appropriate?

21.   Although counsel for Ms. Ellis submitted that because the degree of encroachment was “minimal”, I ought to allow her claims, I find that the degree of encroachment is not determinative. The survey shows that the new fence is partly on the Dangerfields’ property. The Dangerfields are therefore entitled to a partial ownership interest in it.

22.   I find that it was Ms. Ellis’ responsibility to either obtain consent from the Dangerfields to replace the original fence, or to ensure that her new fence was constructed entirely on her own property. She did neither. Ms. Ellis did not check the property line using a survey until she had already had DM remove the original fence and was most of the way through constructing a new fence. I find that it would be unfair to make the Dangerfields pay for Ms. Ellis’ failure to take reasonable steps to ensure the new fence was built on her own property before she spent over $4,000 having it constructed.

23.   Have the Dangerfields been unjustly enriched by the new fence being placed between the properties, but partly on their property? Counsel for Ms. Ellis submits that the Dangerfields have “obtained a benefit without any juristic reason, which has caused a corresponding deprivation for Ms. Ellis.”

24.   The doctrine of unjust enrichment is based on the idea of restoring a benefit which justice does not permit one to retain: see Kerr v. Baranow, 2011 SCC 10 at paragraph 31.

25.   The test for unjust enrichment is well established and requires an enrichment of the respondents, a corresponding deprivation of the applicant, and an absence of juristic reasons for the enrichment: Garland v. Consumers’ Gas Co., 2004 SCC 25 at paragraph 30.

26.   Here, I find that unjust enrichment has not been proven. Although the Dangerfields now have a newer fence partly on their property, that only occurred due to Ms. Ellis’ unreasonable action in removing the original fence and then replacing it without checking the property line. That is, justice would have permitted the Dangerfields to retain the existing fence and have it repaired if Ms. Ellis would agree, but Ms. Ellis did not allow the Dangerfields that choice. I find no legitimate reason to charge the Dangerfields for all or half of a newer fence that they did not want or need at that time.

27.   As well, there is no corresponding deprivation to Ms. Ellis that is required to establish unjust enrichment. Ms. Ellis now has a new fence. She continues to have joint ownership of the fence between the properties, which is what she had before she had the original fence removed.

28.   In submissions, Mrs. Dangerfield suggests that I could order the fence moved back onto Ms. Ellis’ property entirely but compensate the Dangerfields for their share of the original fence. As discussed above, I find that an order to move the fence is injunctive relief outside the CRT’s jurisdiction. PLA section 36(2) allows the BCSC to make compensation to an owner of adjoining land that has been encroached on. Because the Dangerfields did not counterclaim, I find no such claim is before me. If it were, then I would refuse to resolve it as outside CRT jurisdiction.

29.   Even if moving the fence were an order I could consider, monetary compensation for the original fence would not provide a fair outcome.

30.   PM wrote that parts of the fence needed repair, but no one suggested that the only repair option was replacement at the more than $4,000 spent by Ms. Ellis. I give PM’s statement limited weight on this point because he benefitted by getting the job to replace the fence. There was little evidence that the whole original fence required urgent replacement except for one portion that PM identified as falling down. Ms. Ellis did not provide a photograph of that alleged portion of the fence. In somewhat contrary evidence, in 2019 Ms. Ellis wrote a letter to the Dangerfields in which she thanked Mr. Dangerfield for keeping the fence from falling down. Based on her letter, I find that the fence was upright and functional in 2019, and that Mr. Dangerfield was providing maintenance for the original fence, without cost.

31.   Based on the photographs and whole of the evidence, I find that the original fence was mainly intact and, as the Dangerfields submitted, “serviceable”, when Ms. Ellis removed it.

32.   Ms. Ellis’ counsel also submits the original fence would be of little value, given its age and condition. As such, monetary compensation would not leave the Dangerfields in a position to restore what they had before Ms. Ellis took the original fence down.

33.   Should I order the fencing materials removed and returned to Ms. Ellis, under the CRT’s personal property jurisdiction? I find that the building materials have been constructed into a new fence, on both properties. Because the fence construction partly on the Dangerfield’s property was caused by Ms. Ellis’ lack of reasonable care, I find it is not appropriate to order return of the materials. The fencing materials are not loose materials left on the Dangerfields’ property by mistake, they are items of fencing construction that now form the fence itself, placed on their property intentionally by Ms. Ellis, through her contractor.

34.   For these reasons, I find that dismissing Ms. Ellis’ claims is the appropriate outcome.

 

CRT Fees and Dispute-Related Expenses

35.   Under section 49 of the CRTA and CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. Because Ms. Ellis has been unsuccessful in her claim, I dismiss her claims for CRT fees and dispute-related expenses.

ORDER

36.   I dismiss Ms. Ellis’ claims and this dispute.