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Clean Hands in Real Estate Disputes (Nuisance and Trespass)

Sometimes neighbours don't get along. The source of the dispute may arise from someone placing his fence or eaves trough on or over their neighbour's property without consent. That is called a continuing trespass to land. It may also be that someone will divert water from their land to their neighbour's land causing damages. That is called a nuisance. Or there may just be a personality conflict between neighbours, and this same conflict leads one neighbour to aggravate tensions by committing a trespass or a nuisance on his neighbour's land.

In any case, the neighbour whose land is suffering the nuisance or trespass (the aggrieved neighbour) may revert to the courts for redress. In cases of continuing trespass to land or nuisance, a claim for damages (i.e. money) usually will not suffice, because the object of the claim (the trespassing fence, or water migration) will not be removed or stopped by a Court judgment. The preferred remedy is an injunction, which is a way for a Court to force a party to do, or to stop from doing, something. Someone can put an end to their neighbour's offending conduct by seeking an injunction to remove a trespassing fence, or re-grade a yard or remove a spout to stop water migration.

And therein lies the rub. An injunction is an equitable remedy, not a common law remedy (i.e. damages). Because injunctions are creatures of Equity, the Court will look at the conduct of the neighbour seeking the injunction. If the Court finds that this person has acted in a way that is reprehensible or repugnant to the Court, then the Court may use its discretion not to award the injunction. Someone seeking an equitable remedy needs to come to Court with "clean hands."

In the case of Simard & Noppen v. Traynor et al., 2018 ONSC 7627, a couple sought an injunction to remove a portion of their neighbour's deck that was trespassing on their right of way. Although the Court found that the encroachment on the right of way was not actionable, it went further and found that the couple had unclean hands because:

a. They had adopted a retaliatory approach towards their neighbours; and

b. They sought to have their neighbours comply with the terms of the right of way which they themselves had failed to respect for years.

The couple's Court Application for an injunction was dismissed, and their neighbour's deck remains in place. In other words, the Court has permitted what may have otherwise been an illegal encroachment on the right of way.

If you ever get into a dispute with your neighbour over a trespass to land or a nuisance, please resist the urge of retaliating against them. Try to act in a way that is beyond reproach, and call your litigation lawyer for assistance. With clean hands, you will have a much better chance of being awarded your injunction.

To reach the author of this blog, Patrick R. Simon, email [email protected] or call 613.232.5773 .

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