Who Has the Right to Boundary Trees?

While trees add beauty and character to neighbourhoods, they can also cause tension between neighbours, particularly where they grow across property lines. This raises many questions:

When must I cut my trees?
As a tree owner, if a dead or dying branch or tree is in the location where it could potentially cause damage, the owner of the tree has a duty to take reasonable care. This could give rise to a duty to trim back a tree or branch that is a threat to neighbours. In Hayes v. Davis an injured neighbour was awarded substantial damages from a neighbour that refused to take reasonable care in maintaining his trees, which resulted in an accident following a severe storm.

However, in the case of Doucette v. Parent, the court held that growing trees is a natural use of land that does not attract liability, only dead or dying trees or branches that are noticeably likely to cause damage need to be cut back. Hence, this case was dismissed, as neither party knew that the tree was sick and would have fallen and caused damage in a windstorm.

Do neighbours have the right to trim overhanging trees?
Usually neighbours have the right to trim branches overhanging their side of the fence, but cannot enter your property to do so. This could give rise to trespass. If the tree is damaged as a result of a neighbour’s pruning attempts, they could be found liable. The best advice is to do only as much as is necessary to solve the particular problem.

Can I trim municipally owned trees that are in front of my house?
Homeowners are required to inform the municipality of any concerns but are restricted from trimming these trees. Failure to comply could result in fines and replanting if necessary.

It is important to check with your local municipality when dealing with problems concerning trees. There may be restrictions on the cutting of trees. Even if a tree is completely on your property, you may not be able to cut it down without a permit depending on the kind and size. As well, you should ensure the tree is not actually owned by the municipality.

New Law on Tree Preservation
In May 2013, the Ontario Superior Court in Hartley v. Cunningham et al redefined the law on tree preservation in Canada. Cutting down a shared tree or chopping at wayward branches without a neighbour’s approval could now be considered a criminal act, punishable under the provincial Forestry Act, R.S.O. 1990, c. F.26. The decision gave neighbours equal ownership over trunks that cross over property lines whether above or below ground, which in effect redefined what constitutes a tree’s trunk. In order to remove a boundary tree, both neighbours are now required to provide consent.

Justice Moore ruled that a shared tree under the Forestry Act begins where its roots join the trunk, up to where the trunk begins to branch out. Defining a trunk at ground level alone may be considered ‘arbitrary’ as individuals could potentially alter ‘ground level’ simply by adding soil or other materials at the base of the tree in order to raise the base to a position which may not be on the boundary line. As a result, it was decided that the adjoining neighbours in this dispute were to be given common ownership of the boundary tree under provincial law as the portion of the tree in which the trunk met the roots was located on the boundary line. This case can be accessed at the following link: http://beta.canlii.org/t/fxkt6.
                                                                     
Who should pay for the maintenance of boundary trees?
On February 20, 2014, the Ontario Superior Court of Justice delivered a judgment associated with boundary trees and the responsibilities of the owners of the relevant properties when it comes to their maintenance and associated costs. The decision in Laciak v. City of Toronto focused on the question of whether or not an order under the Building Code Act, 1992, S.O. 1992, c.23 from the Property Standards Committee in Toronto, which required Ms. Laciak to complete maintenance and pruning on a boundary tree, should be upheld. This order required Laciak to bear sole responsibility for the costs associated with removing the portions of the tree that were diseased, decayed or damaged. The court however, determined that these costs should be shared between owners of the neighbouring properties on which the boundary tree encroached, which means that municipalities must now consider the implications of this decision when issuing orders against homeowners.

As noted above, the court in Hartley redefined the law on tree preservation in Canada and the decision gave neighbours equal ownership over trunks that cross over property lines whether above or below ground, which in effect redefined what constitutes a tree’s trunk. The court in Laciak v. Toronto relied on the definition of a boundary tree as provided in Hartley in order to determine whether the tree in question was in fact common property with shared ownership. The survey in this case showed that the tree was located on three adjoining properties (albeit in different proportions), however, the order was only successfully issued against one owner; Laciak. Although the committee subsequently issued orders to the two abutting property owners, these orders were successfully appealed whereas Laciak’s was confirmed, leading to an appeal to the Superior Court.

Laciak argued that if she were to comply with the order and take action to remove the tree which was located on common property, she would be violating the Forestry Act and could be subject to a penalty up to $20,000.00. Furthermore, she had already expended $1,700.00 to clean up a portion of the tree and she had concerns that to clean it up entirely could cost up to $10,000.00 which she argued should be a shared cost by herself and the other two adjoining property owners.

The court held in her favour and decided that the boundary tree was commonly owned by the all three property owners. The order of compliance which required one sole owner (Laciak) to be held responsible for all costs associated with maintenance was set aside by the court. It was left to the City to “take whatever steps it deems necessary to address the issue of repair of the tree with all the owners”. This case illustrates the need for municipalities to consider the implications of boundary trees and shared ownership when issuing compliance orders, especially in light of the consent requirements contained in the Forestry Act.

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Luc Trahan

Luc Trahan

Sales Representative
CENTURY 21 B.J. Roth Realty Ltd., Brokerage*
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