Who has the Right to Boundary Trees?

Posted on: Tuesday, August 20th, 2013

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 significant 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.

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 by clicking here.

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. Never go overboard.

Can I trim municipally owned trees that are in front of my house?

Homeowners are obligated 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 size. As well, it is a good idea to ensure the tree is not actually owned by the municipality.

The content of this article is intended to provide a general guide to the subject matter. The information does not constitute legal advice and a solicitor and client relationship is not created.

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