When your client duels with a neighbour over issues concerning residential or leisure properties, high emotions often come into play.
"These are very difficult issues for lawyers when clients come in to speak to them because there's a lot of subtle issues at play," says Craig Carter, a Toronto-based partner in the Real Property and Real Estate Litigation Group at Fasken Martineau Dumoulin LLP.
"Getting the facts straight is probably the most difficult part of the process. The difficulty often is that there are emotional issues getting in the way of rational solutions. For the lawyer, there's a filtering process that needs to be undertaken to get at the actual facts and away from the emotional input that is underscoring the dispute between the parties."
Because you are dealing with people's homes, you are dealing with a lot of very intense emotions, he says. People tend to take very rigid positions -- there's a lot of black and white, not a lot of grey, to their stories.
"The lawyer's job and challenge is in not responding to the client's view of who is in the right and who is in the wrong," continues Carter. "What the client usually wants is a cheerleader, when what he or she really needs is a rational, mediated kind of solution.
"If the parties end up in litigation, they will both be losers in the process. That's because the relationship has totally soured between them and they still have to live in close proximity to each other. This doesn't even take into consideration the significant unrecoverable costs of winning," he adds.
Carter cautions lawyers that the actions that get clients into trouble most quickly are "self-help" remedies they may undertake to right what they consider to be wrong. Unfortunately, ceding the moral high ground may well be the wrong course of action, especially if your client later ends up litigating the issue.
So when your client finally succumbs to emotion and blocks a driveway or tears down a fence that they are sure encroaches on their property, it may not be the wisest action.
"In commercial situations, clients may put up a fence or block a laneway as a way to increase their bargaining power and speed up a settlement. But with homeowners, it is generally straight emotion. They have had enough," says Carter.
"Courts don't like that kind of oppressive conduct, especially bullying, and they often punish it in the end. The challenge to the lawyer is to always maintain the moral high ground so you can go into court and say that you have done everything you can to resolve this problem.
"It's almost always right-of-way problems that lend themselves to self-help action," Carter says. "These involve 'historical use.' A new person comes in and buys the property and wants everything changed."
Then the "my home's my castle" attitude comes into play and the duelling is on, he says.
Still, in today's hot property market, if a fence is blocking the right of way, it's a real financial concern for clients.
"Access is fundamental to the value of real estate," Carter says.
Lawyers should be aware that there is a provincial statute called the Road Access Act, which most often applies in cottage country to keep open cottage roads. The act specifies that if somebody is using an access road, it cannot be blocked without a court order. If it is, that's an offence under the act. This is one more reason for lawyers to discourage clients from resorting to self-help remedies.
Morris Cooper, a Toronto-based litigation lawyer, sees his fair share of neighbour disputes.
One of his cases, currently awaiting trial, involves clients in the Caledon, Ont., area who for two generations have owned a piece of property on both sides of the Credit River. Their neighbour on the other side of the river decided to bulldoze the property behind his house right down to the river. The land is part of Cooper's client's acreage.
"Efforts to resolve the issue with the neighbour directly were unsuccessful. Not only had he bulldozed all the brush, he had pushed the debris from the clearing onto their property," says Cooper.
Cooper says that when confronted, the neighbour claimed that he had been using the land down to the river for years.
"This is a not unusual example of a situation as a result of self-help tactics by someone who decided they will treat the land as their own," he says.
"When you see these cases reported, they are often accesses to cottages, lakefront, or country properties where previously there had been informal agreements never really registered on title. Historically, people built cottages and homes on land where the intentions of laneways, easements, and access were never recorded.
As a rule, these types of neighbour disputes are magnified today in clients' minds, since properties can be worth millions of dollars," he adds.
For Carter, the issue of self-help comes down to this: if your client is completely in the right, then you will win anyway. But there are ways of building the file and maintaining the moral high ground. Anything your client decides to do unilaterally has the potential to hurt the case.
It may be hard to convince your angry client, says Carter, but it is much better to write the letters, and offer to mediate on behalf of your client. If you ultimately end up going to court, you can be shown to be taking that course of action because all other options have been exhausted.
"The courts get irritated about residential issues getting into court. The court's preference would be for the parties to be adults and work out an adult solution," he says.
"But when it does come to court, there is an opportunity to do justice. Since these cases are never black and white, they are always open to interpretation by the court. This is a very fact-driven process, so the courts look at all the factors, including the behaviour of the parties," says Carter.