2014 QCCQ 7282, 2014 QCCQ 7282

Rossi c. Singh 2014 QCCQ 7282 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-135392-126 DATE: July 4, 2014 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ AMATO ROSSI -and- ALISSON WEISS Plaintiffs v.

DARMINDER SINGH Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Context [ 1 ] Plaintiffs and Defendant are neighbours and their respective residential properties are contiguous. Plaintiffs allege that pursuant to their discussions, there was an agreement between the parties that the cost of a projected fence to be placed along their common property line would be shared equally. After the decision, the fence was in fact installed and the work was paid for by the Plaintiffs.

When Plaintiffs requested payment from Defendant of one half of the cost, Defendant refused and denied the existence of an agreement to share the costs. [ 2 ] Plaintiffs claim from Defendant the amount of $815.98, being one half of the cost of labour and material for the installation of the fence. Plaintiffs testify that they entered into discussions with Defendant as to the necessity and mutual advantage of installing a fence along their property line. According to Plaintiffs, it was Defendant who suggested in the first place the installation of such a fence.

It appears that the fence was initially not installed exactly on the property line but that was later corrected. [ 3 ] Before the Court, Defendant contests Plaintiffs’ claim and denies the right of Plaintiffs to impose upon him a fence along his property line. Analysis and Decision [ 4 ]

Article 1002 of the Civil Code of Quebec states as follows: Any owner of land may fence it, at his own expense, with walls, ditches, hedges or any other kind of fence.

To divide their lands, he may also require his neighbour to make on the dividing line one-half of, or at common expense, a fence suited to the situation and use made of the place. [ 5 ]

Article 1002 of the Civil Code of Quebec states as follows: The maintenance, repair and rebuilding of a common wall are at the expense of each owner in proportion to his right. [ 6 ] The law provides for an obligation of the part of neighbours to accept the existence of a fence along their property line and to assume equal shares for the initial and subsequent costs of installation and maintenance of such a fence. [ 7 ] Furthermore, the proof before the Court established, as admitted by Defendant himself at the hearing, that he did request that the Plaintiffs install such a fence along the property line. [ 8 ] He admitted that he did agree to put up the fence but stated that he is not satisfied with its physical features.

However, when the fence was being built, it was in his full view and to his knowledge. He made no objection at that time. At the time of the agreement to build the fence, Defendant made no request for any specific feature for the fence, nor did he ask to be involved to approve the design. After giving his unqualified agreement to build the fence, he only voiced certain criticisms of the fence after Plaintiffs had incurred the expenses of having the fence built and after the Plaintiffs came to see him to present the invoice of the fence company, Clôture Fortin (Exhibit P-2) for $1,631.97.

The Plaintiffs requested payment of one half as agreed, being $815.98. Defendant did not refuse then. Plaintiffs waited for payment and finally confronted Defendant who refused to pay. After a demand letter, the present legal proceedings were instituted by Plaintiffs. [ 9 ] Defendant raised other grounds in his contestation and testimony. He states that the fence on his side is almost one foot higher than the one located on another property line of the Plaintiffs. This ground is without merit. A higher fence is more expensive since it requires more materials and gives more privacy.

The Defendant also objects to the colour used, which is brown. But that is the same colour that Plaintiffs used elsewhere on other fences on their property and it is the same colour used on Plaintiffs’ side. The Court examined the photographs of the fence (Exhibits D-3 to D-5). The fence looks pleasant, adequate, acceptable and without any objectionable feature. [ 10 ] The Defendant complains that he had to pay for a land survey to have the fence realigned so that it be located exactly on the property line.

However, the Plaintiffs had to do so as well and the proof is to the effect that Plaintiffs had no responsibility for the initial error regarding the location of the fence. [ 11 ] For the Court, it is clear that Defendant’s lack of cooperation in payment for his share of the costs for the fence results from other and unrelated issues between the parties. Defendant should respect his agreement to pay for one half of the costs of the fence and the Court will make the order to that effect.

FOR THESE REASONS, THE COURT: CONDEMNS Defendant to pay Plaintiffs the amount of $815.98, with legal interest of 5% per annum and the additional indemnity provided at

Article 1619 of the Civil Code of Quebec from the date of the demand letter (Exhibit P-1) of July 17, 2012; WITH JUDICIAL COSTS of $71.75 in favour of Plaintiffs. __________________________________ Jeffrey Edwards, J.C.Q.

Date of hearing: April 7, 2014