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A Shuswap condo resident who took "matters in her own hands" and dismantled a cedar fence while their neighbour was away is on the hook for a $200 trespassing fine.

The issue involves a Blind Bay strata and dates back to 2020 when two neighbours came to an agreement and shared the cost to build a cedar fence between their units.

However, the neighbours, Laurie Riley and Carl Neilson didn't get permission from their strata before the fence went up and when they applied, the strata refused.

The strata then took Neilson to the Civil Resolution Tribunal in an effort to get him to cough up $2,800 in bylaw fines and fees and order him to remove the fence.

The Tribunal sided with the strata and ruled Neilson had to pay the fines, however as Neilson had recently sold the condo it refused to order him to remove the cedar fence.

READ MORE: Kamloops strata loses fight with tenant smoking on balcony: court

The fence remained but the condo's new owners Claire Bakker and Candice Graf weren't happy about it and spoke to Riley.

Riley suggested that they either ask the strata to approve the fence, have Graf dismantle the fence but compensate Riley $2,141, or wait for the strata’s decision.

However, when Riley was away Graf removed the fence.

Riley then took Graf to a Civil Resolution Tribunal arguing for $2,141 in compensation to cover her share of the cost of the fence.

However, the Tribunal ruled Graf had actually saved Riley some money by taking the illegal fence down.

"(The fence) should never have been built. Further, I find it clear that the strata would have eventually removed the fence," the Tribunal ruled. "It is arguable that Candice Graf saved Ms. Riley some expense."

While Riley lost her claim to get the $2,141 refunded, the Tribunal did rule that the neighbour had trespassed while it removed the fence, although Riley hadn't made that accusation in her initial submission.

The decision looked into the exact position of the fence and found that it didn't follow the property line directly, therefore Graf must have trespassed while removing it.

Graf argued she had no idea she was trespassing when she removed the fence.

"Mistake is not a defence to trespass," the Tribunal ruled. "Trespass will occur, even if the respondent is not conscious of wrongdoing, so long as the respondent intends to conduct themselves in a certain way and willingly does so."

The Tribunal then goes on to assess what damages Riley should receive for the trespass and goes into detail about the legal definitions of various types of trespass.

A "technical trespass" happens when a person doesn't cause any damage, the decision reads.

"I find this was not a case of "technical trespass" because Ms. Riley specifically told the respondents in August 2021 that she wanted to keep the fence or be paid compensation for it," the Tribunal rules. "However, I am equally of the view that it would be unfair to order Candice Graf to pay more than $200."

The Tribunal says as the fence was going to be removed anyway so $200 compensation is adequate.

Ultimately, the Tribunal ordered Graf to pay Riley $200 for trespassing, although Riley is left fenceless and $1,900 out of pocket.

READ MORE: Vernon couple's 'pony wall' costs them $15K in legal battle with strata

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