Gaining Access To A Neighbouring Property To Repair Your Own: What Are Your Options?

Consider the following hypothetical situation: You require access to a neighbouring property in order to repair or make improvements to your property or building. Certain items on the neighbouring property may have to be removed so that your contractor can complete the repairs. This situation is not uncommon, especially where neighbouring properties share a common wall or driveway. This article will outline some of the options that are available to property owners who find themselves in this situation.

Option #1: Politely Ask Your Neighbour For Access To Their Property

This is an obvious option but it should not go unmentioned. In all likelihood, the most practical and cost effective solution will involve a mutual agreement with your neighbour regarding how the repairs will be carried out. Solving the problem without the need for legal proceedings will undoubtedly reduce costs and put the parties in a position where they can maintain a non-confrontational relationship going forward. That said, it would be prudent to obtain legal advice prior to committing to any agreement regarding access, to ensure that you fully understand your obligations and potential liability.

Asking for permission may be a great idea in theory, but what happens if your neighbours deny your request?

Option #2: Check The Legal Description Of The Neighbouring Properties To Determine Whether Any Easements Exist

If you find yourself in the unenviable position where your neighbours deny access, the first question to answer is whether there are any easements on title to the neighbouring properties. In general, an easement is an interest in land giving someone the right to use or control that land for a specific limited purpose.

After you and/or your lawyer investigate the legal descriptions of the neighbouring properties, you may discover that your deed (and perhaps your neighbour’s deed) contain reciprocal easements that give the parties certain access rights. The easements may give you the right to access your neighbour’s property for the purposes of conducting repairs or improvements.

If you are lucky, your easement will clearly outline the extent of the access that you are entitled to. If this is the case, you may be in a position to seek judicial relief in the form of a court order requiring your neighbour to provide access in accordance with the easement. Unfortunately, in many cases easements are vaguely drafted, which will invariably lead to disputes regarding the extent of the access that you may be entitled to. Your lawyer can help you determine whether litigation is an option worth considering.

Option #3: City of Ottawa By-Law 2005-326

If your neighbours deny access, and your property does not benefit from any easements, you should consider the City of Ottawa By-Law 2005-326 (the “By-Law”). If you own property in the City of Ottawa, the By-Law allows you to apply for a “right-of-entry permit” to enter onto an adjoining property for the purpose of making repairs or alternations to your own property.

To obtain a permit, the By-Law requires: an application, the payment of a fee, the payment of a security deposit, and an inspection by the City of the adjoining properties. Your application for the permit must include:

(a)   a detailed description of the work to be completed;

(b)   a description of the land on which the work is to be done which identifies the building lot as well as the adjoining properties;

(c)   contact information for the owners of the adjoining properties and the contractor that is performing the work;

(d)   the address of the adjoining property upon which permission to enter is sought;

(e)   a $250.00 permit fee;

(f)    a deposit in cash as deemed necessary by the City of Ottawa, which is sufficient to pay for the costs of restoring the adjoining property to the same condition it was in prior to entry (minimum – $500.00).

The City retains the deposit until the neighbouring property is restored to its original condition. If an applicant fails to restore the neighbouring property to the satisfaction of the City, the deposit will be forfeited and paid by the City to the owner of the neighbouring property.  

The City will issue the permit on the following conditions:

(a)   the repairs or alterations are made only to the extent necessary to effect such repairs or alteration;

(b)   the adjoining land is left in the same condition as it was prior to such entry;

(c)   the entry is only for the days and hours specified in the permit;

(d)   power of entry is only exercised by the owner or his or her employees or agents;

(e)   the person exercising the power of entry displays or produces proper identification; and

(f)    the owner provides reasonable notice of the proposed entry to the owner of the adjoining land.

It should be noted that a permit will not be issued until City officials are satisfied that entry upon the neighbouring land is necessary for the purposes of making the repairs or alterations.

If the repairs or alterations damage the adjoining land, the By-Law requires the applicant to restore the neighbouring property as close as possible to its original condition. The By-Law also provides that the applicant must compensate the owner of the adjoining property for any damage caused.

Conclusion

It is important to carefully consider all of your options before approaching your neighbour regarding your intention to gain entry to their property. The appropriate option will depend on a number of factors that include, the relative importance of the repairs, your relationship with your neighbours, and the costs associated with each option.

This article was originally published in the December 4, 2007 edition of the Ottawa Business Journal.