Implied Consent means conduct or words, or both that imply that an owner or occupant of land has given consent to another person to enter the land. When a DP is approved, the City does so with the concept of “implied consent” in mind. Implied consent does not mean that an owner or occupant of land can not refuse access to that land, with two exceptions: if a utility right of way (ROW) exists on the land, the owner or occupant can’t deny access to the ROW to the utility. The second exception is public safety. If conditions occur that create a public health or safety hazard, a property owner or occupant of land can’t reasonably refuse access to mitigate the health or safety issue.
Recently, we were made aware of a neighbour being told by a contractor that they intended to access their property in order to facilitate construction relating to an approved DP on their next-door neighbours property. The contractor took the concept of implied consent as the right to access, dig up, and utilize the adjacent neighbours land for their construction work as they deemed fit. The neighbour in question objected to this use of their property and issued a formal, written notification of No Trespass to the contractor, the adjacent property owner, and copied both the Calgary Police Service as well as their Councillor. All this took place prior to any work occurring on the adjacent property. The contractor then threatened legal action, claiming that any additional cost over runs for executing the work without accessing the neighbour’s property would be the responsibility of the objecting neighbour. Had the neighbour not objected in advance of the work taking place this might have had some basis in law, but in this case the neighbour clearly withheld consent in advance of any work taking place. For anyone who may be faced with a similar situation, know your rights. You can say no; you can refuse access to your property as long as you act within reason. Even after construction begins you can still withdraw consent, but unless you have valid reason to do so you may at that point become legally liable for additional expenses incurred to complete the work in question.
Given that the City of Calgary presumes Implied Consent, the easiest way to remove this option is to specify you do not consent to your property being used to facilitate construction on an adjacent property during the public comment period prior to a DP being approved. Ensure you keep a copy of any comments made in case you need to produce it should litigation occur later on. The next best time to withhold access is prior to construction taking place. This can be done verbally but should also be done in writing. If you do consent, take steps to ensure your property rights are respected. A written agreement (consult your lawyer) outlining what is or is not allowed with clear language regarding who is responsible for the costs and repairs of any property damage on your side of the property line should be in place prior to construction occurring. Do not rely on a verbal agreement to protect you. Take photos of the condition of your property prior to any work commencing, and photos to document the work in progress in case you need to make a claim for damages. Accidents can occur. You may also wish to check with your property insurer regarding what, if any, coverage they may provide in case of any unanticipated damage or lack of remediation upon the completion of work. Keep in mind that trees and other vegetation located on your side of the property line may have roots extending beyond that line; construction work can damage roots enough to result in decline and death. This may occur a considerable length of time post construction; photo evidence of roots being cut through as a result of the construction process will be helpful if you end up in court.
Disclaimer: The above information is provided in good faith but is not a substitute for legal counsel or advice. Should circumstances arise that make seeking such advice necessary ensure you consult a lawyer experienced in dealing with property law.
Linda Mulligan
Development Liaison, Woodcreek
Click here to the Woodbine Community News home page for the latest Woodbine community updates.
Click here to the Woodlands Community News home page for the latest Woodlands community updates.
