There are times when an owner of land will need to go over his or her neighbour’s property to maintain and repair the dwelling on such owner’s land.

In a townhouse complex or a double there is usually registered on the title of these properties an easement in the nature of a right-of-way that will allow all of the neighbouring property owners to go over each other’s land in the case of an emergency or in the instances of doing repair and maintenance work to the foundation, the roof, the landscaping, the common party walls or anything that is jointly enjoyed by all of them.

In some instances there may also be encroachments of eavestroughs or downspouts or portions of the roof that may overhang and are not exactly within the lot lines.

Apart from a townhouse complex or a double there also exists situations where a building is built so closely to the lot line that there is insufficient space or access to do any maintenance repair or work.

In such instance the owner of the property needing work to his or her dwelling will need the consent of the adjacent property owner to do such work. If this consent is not given, then, the City of Ottawa has a Right of Entry By-law (By-law 2005-326) which authorizes the owner or occupant of land to enter the adjoining land for the purpose of making repairs or alterations to buildings, fences, or other structures.

The basis of the Right of Entry By-law is found in section 132 of the Municipal Act, 2001, which allows municipalities to pass such by-laws. In addition, there is found in the common law the right to a way of necessity where the lands for which work is required is physically inaccessible except by passing over the other lands.

Not all municipalities have Right of Entry By-laws. As such, those property owners that need to do maintenance and repair to their property must either get the consent of the adjacent property owners or, if that consent is not given, to go to court for an order that such property owner has a right to a way of necessity to over the adjacent property to do the needed work.

If there is a Right of Entry By-law, such as the case in the City of Ottawa, then, before doing any work to a property that requires entry to the adjacent property, contact the municipality, get a copy of the By-law to know what is required, and apply for a Right of Entry Permit. Only after a Right of Entry Permit is issued can the needed work be done.

Despite the Right of Entry Permit the best situation at all times is to have the co-operation of your neighbour. But, this may sometimes not be possible and, if so, my recommendation is to do the work quickly if a Right of Entry Permit is given or a court order to that effect, and minimize the conflict between you and your neighbour. Property ownership is not only a legal issue but an emotional issue for everyone.