I live in a townhouse complex. Each unit has a small backyard (owned by the unit, i.e. not common element). The backyards have a privacy wall that goes halfway to the back. There is a (common element) fence in the back that separates the backyards from a road.

My neighbor requested my permission to extend the privacy wall all the way to the common element fence (he did that on the other side as well, thereby completely enclosing his backyard). Before extending the privacy wall, there used to be a gate in the common element fence that I could use to exit my backyard. That gate was shared between the neighbor and I -- i.e. it was half on his side and half on my side. Extending the privacy wall would mean that the extended privacy wall would intersect with the gate, which means the gate would have to be removed. Since I wanted to maintain an exit from my backyard, the neighbor and I had agreed to add a gate on my side of the common element fence. This was part of the formal agreement that I signed and agreed to.

However, when the privacy wall was extended, no gate was added on my side as I had agreed. The neighbor says that this was the condo corporation's decision to do that; the condo corporation says that this agreement was between the neighbor and I, and they're not responsible for enforcing it.

However, the agreement (the template was provided by the condo corporation) says that if the owner (who put up the fence) fails to comply with the agreement, that the condo board may require the owner to either fix the issue or restore everything as it was.

This is in Ontario.

What should I do? The condo corp is giving me the run-around, and the neighbor thinks its not his problem. Is there a rule that says that the condo corp must enforce this agreement -- even on my behalf?

It sounds to me like the agreement was between you and your neighbor. The condo corp just signed off on it.

I think you have 2 options.

1. Have a gate installed and sue the neighbor for the cost. It sounds like your contract pretty clearly outlines this as his responsibility, so you should have no trouble getting a judgement. I have NO idea how easy or hard it is to collect on a judgement in Ontario.

2. Badger the neighbor to have the gate installed. You could begin doing this yourself with letters, including copies of the contract with the pertinent parts highlighted, etc. moving on to getting an attorney to send such coorespondence, up to filing a lawsuit to force the neighbor to pay for the gate.

So, just out of curiosity? Does he have a gate? What happened to the gate that was there? Did they move it over onto his side, or take it out all together?

This hinges on the wording of the contract. You said it says; "the condo board may require the owner to either fix the issue or restore everything as it was." Is that an exact quote. If it is, then forget the condo board. The key word is MAY (board MAY require). This leaves it up to the board to decide whether it will get involved in enforcing the agreement. Obviously they have decided to not get involved. So that leaves your recourse to the local courts.

You have three options then. First, you can send the naeighbor a letter (oir have an attorney send it). Cite the clause in the agreement that states that he was supposed to replace the fence. Give him x days to comply with the contract or you will start court proceedings.

Second, you can pay for the gate, then send him a bill, again citing the contract. And, again, stating if payment isn't received you will start court proceedings

Third, just take him to court immediately.

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Originally Posted by rockinmommy

It sounds to me like the agreement was between you and your neighbor. The condo corp just signed off on it.

So, just out of curiosity? Does he have a gate? What happened to the gate that was there? Did they move it over onto his side, or take it out all together?

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Ok, here's a bit more context :)

The original agreement had two separate gates (both on the back (common element) fence): one exitting from the neighbor's backyard, and one exitting from my backyard. The two privacy wall extensions (on each side of the neighbor's backyard) were solid (no gate).

What got built instead is that each of the two privacy wall extensions have a gate. No gate were put in the back (common element) fence.

And here's where things get more complicated: the neighbor says that the condo corporation (well, the property manager) changed the agreement. The neighbor actually wanted a single exit from his backyard. So that's why he says it's not his fault if I don't have a gate; it's the condo corporation's fault.

When I asked the condo corporation about this, they said those gates were for maintenance people to enter our backyard, not for the owners to use. That's why they thought they had the right to modify the agreement and move the gates around. But I have a problem with that: when I purchased this property (6 years ago), the gate in the back fence was there. There's no sign that says owners can't use it; and I indeed have been using it as an exit to my backyard. I've sent this to them in writing; they didn't address my concern directly, their reply was that this matter was between the neighbor and I. So I think they're just doing whatever they can to avoid resolving this issue.

Hence, that's why I'd prefer avoiding proceeding against the neighbor; It's not clear who's responsible for this -- the neighbor or the condo corp.

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Originally Posted by ScottGem

This hinges on the wording of the contract. You said it says; "the condo board may require the owner to either fix the issue or restore everything as it was." Is that an exact quote. If it is, then forget the condo board. The key word is MAY (board MAY require). This leaves it up to the board to decide whether it will get involved in enforcing the agreement. Obviously they have decided to not get involved. So that leaves your recourse to the local courts.

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Thanks for the reply.

What if the board changed the agreement (see my reply to rockingmommy)? To me it's fishy if they can change the agreement without requesting confirmation that the changes they made were acceptable.

First, I'm having some trouble visuallizing what was built so I've attached a drawing showing what I think happened. What you are saying is that there is no longer any gate in the Common Element fence for either yard?

Second, if the board changed the agreement, they would have had to get BOTH parties to initial the change for the change to be valid. If that was not done, then the original agreement is still in force.

So if the original agreement is still in force, then you are back to the three options I stated. If your neighbor thinks he was wronged by the board then its HIS business to sue the board. You have a signed agreement that says the gate will be moved.

I'm also confused as to why gates were put in the privacy fence. Why would the neighbor want gates that permitted access to his yard from his neighbors (and vice versa).

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Originally Posted by ScottGem

First, I'm having some trouble visuallizing what was built so I've attached a drawing showing what I think happened. What you are saying is that there is no longer any gate in the Common Element fence for either yard?

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Your drawing is 100% accurate (except that you're missing the two gates that were added in each of the two privacy wall extensions).

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Originally Posted by ScottGem

Second, if the board changed the agreement, they would have had to get BOTH parties to initial the change for the change to be valid. If that was not done, then the original agreement is still in force.

So if the original agreement is still in force, then you are back to the three options I stated. If your neighbor thinks he was wronged by the board then its HIS business to sue the board. You have a signed agreement that says the gate will be moved.

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Ok, fair enough.

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Originally Posted by ScottGem

I'm also confused as to why gates were put in the privacy fence. Why would the neighbor want gates that permitted access to his yard from his neighbors (and vice versa).

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Well, the neighbor didn't want those gates; he said the condo corporation decided that. I guess their reasoning is that if the gates are only there for maintenance of the grounds, then it's simpler for the maintenance people to go across the yards rather than in and out if each backyard has its own gate exitting to the street.

I guess there's still the question as to whether the condo corp is even allowed to do that. They say the rear fence is common element, therefore they are allowed to modify it as they see fit. I claim that the gate was an exit from my property, which was there when I purchased my property, and that they can't just remove it.

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Originally Posted by jdtalbot

Well, the neighbor didn't want those gates; he said the condo corporation decided that. I guess their reasoning is that if the gates are only there for maintenance of the grounds, then it's simpler for the maintenance people to go across the yards rather than in and out if each backyard has its own gate exitting to the street.

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OK, that makes sense. Does each yard have a gate or were they spaced to cover several yards? That could have a bearing on this.

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Originally Posted by jdtalbot

I guess there's still the question as to whether the condo corp is even allowed to do that. They say the rear fence is common element, therefore they are allowed to modify it as they see fit. I claim that the gate was an exit from my property, which was there when I purchased my property, and that they can't just remove it.

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Actually you are wrong there. Since the common fence is condo property and not yours, they do have the right to modify it without your consent.

However, they do not have the right to change an agreement without all party's consent. But this does complicate things. I suspect there is another gate further down that allows maintenance access to the yards. The board apparently feels that is sufficient for access as long as they can get through your neighbor's yard, hence the two gates.

But the fact remains that you have a signed agreement that states that you agree to allow the neighbor to extend the privacy fence, on the condition that he move the gate in the common fence so you can use it. With that agreement you can force him to put in the gate. He can then sue the board, because they forced the change in the agreement. Now it is possible that your neighbor could countersue you and the board so its all part of one case. And its further possible, that a judge could rule in favor of the board that they had a right to make changes that affected the common fence.

So you might want to try and compromise. Get permission from the board to install your own fence and see if the neighbor will split the cost.

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Originally Posted by ScottGem

OK, that makes sense. Does each yard have a gate or were they spaced to cover several yards? That could have a bearing on this.

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I think there's a gate for every two units in our row. Some other rows that don't back out on a road don't have a gate on the back fence at all. To me, that doesn't seem like a big issue; some units have patios', others don't; etc. The fact that the gate was there when I purchased the unit and was removed without my consent seems like a bigger issue.

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Originally Posted by ScottGem

Actually you are wrong there. Since the common fence is condo property and not yours, they do have the right to modify it without your consent.

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Ok, let me try this on you. In the townhouse complex, there are multiple rows of townhouses. There is only one exit (for vehicles) from the complex. That road that exits is owned by the city. However, all the other internal roads are common elements (i.e. the condo corp is responsible for maintaining them).

If it's true that the condo corporation can modify common elements as they see fit, even if it means removing existing exits, then the condo corp is allowed to errect a fence on the common element road, blocking off (say) one unit in a corner?

I understand that in general the condo corp can modify common elements without owner approval ("as long as it's not a substantial change", money-wise). It just seems to me (as the example above demonstrates) that exits must be protected in some way.

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Originally Posted by ScottGem

However, they do not have the right to change an agreement without all party's consent. But this does complicate things. I suspect there is another gate further down that allows maintenance access to the yards. The board apparently feels that is sufficient for access as long as they can get through your neighbor's yard, hence the two gates.

But the fact remains that you have a signed agreement that states that you agree to allow the neighbor to extend the privacy fence, on the condition that he move the gate in the common fence so you can use it. With that agreement you can force him to put in the gate. He can then sue the board, because they forced the change in the agreement. Now it is possible that your neighbor could countersue you and the board so its all part of one case. And its further possible, that a judge could rule in favor of the board that they had a right to make changes that affected the common fence.

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Would there be an advantage for both the neighbor and I to sue the condo corp "together"? He's semi-satisfied with the current setup, so he's been prety lethargic about this whole thing. But maybe the thought of being sued could cause him to become more supportive.

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Originally Posted by ScottGem

So you might want to try and compromise. Get permission from the board to install your own fence and see if the neighbor will split the cost.

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Thanks, that's another good suggestion.

While I understand your analogy, removing a maintenance access gate and blocking off vehicular access to a unit are vastly different things. Removing the gate, especially since there is a gate a few homes down, does not materially affect your property.

It might be better, especially for neighborly relations, to join together and go after the board. I'm just not sure you will win.

Installing a gate shouldn't be too expensive, it might be the best alternative.

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Originally Posted by ScottGem

While I understand your analogy, removing a maintenance access gate and blocking off vehicular access to a unit are vastly different things. Removing the gate, especially since there is a gate a few homes down, does not materially affect your property.

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Hmm, a few more details: The backyards are not common elements -- they are unit-owned. Therefore the fact that there is a gate nearby doesn't help me: I can't use it anyway (without trespassing on my neighbors' backyard). It's fine for maintenance people, of course, but not for my own use.

No where in the declaration, rules or on the gate itself does it say that that gate was for maintenance people; therefore when purchasing the unit and until this whole issue came up, I've always assumed it was for unit owners to use. Its removal has impacted me in two ways:

1. I used the fact that there was a gate there to design the interior of the house. The door that exits to the backyard leads to a family room. The door to access the family room from inside the house goes through the laundry room. It's a small door. Therefore I can't take in/out furniture (like a sofa or TV) from the family room through the inside of the house; I have to go through the backyard. That has never been an issue before with my own gate; now it's impossible.

2. Also, when doing barbecues and what not in the backyard, it was nice to have people enter the yard from the visitor parking lot, without entering the house. This is no longer possible.

You have lots of great, valid points. The problem is that you can make points until you're blue in the face, if the neighbor nor the condo corp want to assume responsibility the only way you can MAKE them is in court. And then it will be up to a judge to interpret the contracts involved and the intent of the parties involved. (At least that's what if would come down to in the US Small Claims Court system.)

It's either live with it, negotiate with the other parties, or sue one or both of them.

Let us know how it all turns out.

I'm sorry but these are items of convenience not material impact. I remember my sister-in-law had a home where there were no fences between yards. Neighbors freely walked the entire length of the block through the backyards, even though they were privately owned and not part of a condo or development.

But rockinmommy is correct. While you do have valid poiints, they only place to bring up those points is in a court of law. Its my opinion based primarliy on the existence of a written agreement that required the neighbor to move the fence, that you will prevali in court.

Ok, thanks to both ScottGem and rockinmommy for acting as impartial sounding boards!