The answer to this question greatly depends on the province in
which you live. In some provinces, the common law appears to allow
a property owner to simply cut any part of the tree that crosses
the property line.1
In Ontario, however, the Ontario Court of Appeal has recently
clarified that an obscure statutory provision, found in the
Ontario Forestry Act2, means that a
"boundary tree" (a tree whose trunk straddles a property
line) is jointly owned by both property owners.3 It
therefore cannot be injured or destroyed without the consent of
The key provision of the Act is short, but very broadly
Trees common property
(2) Every tree whose trunk is growing on the
boundary between adjoining lands is the common property of the
owners of the adjoining lands.
(3) Every person who injures or destroys a
tree growing on the boundary between adjoining lands without the
consent of the land owners is guilty of an offence under this
The penalty is a fine of up to $20,000 or imprisonment for up to
three months, in addition to any civil remedies. Most notable
however is what this provision does not address. This provision
makes no distinction between trees whose trunks emerge from the
ground on a property line, and trees whose trunks emerge from the
ground entirely on one side of a property line and cross the line
in the air. It also makes no distinction between trees that have
been intentionally planted or that have grown spontaneously, or
between 100 year-old oaks and tiny weed-tree saplings. This
provision appears to apply regardless of any of those facts,
although there may still be creative solutions available, depending
on specific circumstances.
In the urban development and real property context, this has the
potential to be very problematic for developers. Root systems and
canopies can extend a great distance, and it appears that one
boundary tree co-owned by someone interested in preventing
redevelopment or simply holding a developer for ransom, will in
many cases have a powerful tool to do so. As a result, resolving
boundary tree issues in Ontario can no longer be considered a
trivial afterthought, and will more likely require the assistance
of an experienced lawyer in addition to an arborist.
The Ontario Court of Appeal confirmed that courts will generally support and uphold decisions of condominium directors because they are better positioned than judges to make decisions pertaining to their buildings.
According to the city bylaws in Calgary, the grading of lots for new buildings must be done properly so that the water never flows toward the new building or any other nearby properties, but away from those buildings.
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