One neighbour wants to remove a tree. The other wants to keep
it. This situation never ends well. On May 17, 2013, the Ontario
Superior Court of Justice considered such a dispute between two
neighbours regarding the fate of a tree near the boundary between
their properties.1 The result was an important
clarification in the law surrounding boundary trees – namely
that the definition of "trunk" includes the part of the
tree that extends beneath the ground, before roots begin.
How did this come about? The Forestry Act provides that
every tree with a trunk growing on the boundary between adjoining
lands is the common property of the owners of the adjoining
lands.2 The legislation is such that common trees, or
those "growing on the boundary", cannot be destroyed
without the consent of land owners.3 However, it says
nothing about what constitutes "growing on the
boundary"— what part of a tree must be growing
on the boundary — for there to be shared ownership
The disputed tree's above ground trunk was solely on the
property of the applicant, Ms. Hartley. She wished to cut it down
and obtained a permit from the City of Toronto to do so. However,
the tree's trunk extended beneath the ground onto the
respondents property before becoming tree roots. Naturally, the
respondents wanted to keep the tree. What resulted was a dispute
over whether the respondents had the right to assert an ownership
right over the tree when it only emerged from the ground on the
Citing concerns about residents arbitrarily adjusting the ground
level to make trunk emergence locations suit their personal needs,
Justice Moore found that "the meaning of the words in section
10(2) [of the Forestry Act] is clear. It includes within
the ambit of the meaning of a tree trunk growing on a boundary line
the entire trunk from its point of growth away from its roots up to
its top where it branches out to limbs and
foliage".4 This means that boundary trees that have
trunks projecting over the boundary beneath the ground will need
the approval of both neighbours prior to removal.
Since the portion of a tree trunk below ground is typically a
broader part of a tree and the reality that many trees are planted
on or near property boundaries, the implication is that property
owners that want to remove a boundary tree will likely require
permission from neighbours before removing a tree, in addition to
any necessary municipal permits. The maximum penalty for failing to
do so could result in a $20,000 fine or three months
imprisonment.5 Neighbours who disagree about the
location of a tree may need to hire arbourists and surveyors to
determine where the trunk ends and roots begin, adding to the
already significant costs of property ownership and
1 Hartley vs. Cunningham et al., 2013 ONSC 2929
2 Forestry Act, RSO. 1990, Chapter F.26 at s
3 Ibid at s 10(3).
4 Supra note 1 at para 14.
5 Supra note 2 at s 19 (1).
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