A new case from the Ontario Superior Court has ruled that the
costs associated with pruning and maintaining trees growing on
property lines should be shared between owners of neighbouring
properties, and municipalities must take this principle into
account in issuing maintenance orders against homeowners.
In Laciak v. Toronto (City), 2014 CarswellOnt 2369, Himel J. set
aside an order issued by the City of Toronto when it was only
issued against the property owner on whose property the majority of
the tree was growing.
The City had received a complaint about a large Carolina Poplar
in a residential backyard in Toronto's High Park neighbourhood.
The arborist who attended the property found that approximately 30%
of the tree was dead or decaying, and that it posed a potential
hazard. As a result, a property standards officer issued a
maintenance order under the Building Code Act.
The property owner complained that she should not be solely
responsible for the cost of maintenance since the tree's roots
were on two neighbouring properties, in addition to her own.
The property standards officer responded by issuing orders
against the two abutting property owners as well. However, these
two owners successfully appealed their orders to the City's
Property Standards Committee. The appellant's order, however,
was confirmed by the Committee, and she appealed to the Superior
Interestingly, in this case, at the time the arborist inspected
the tree, it was entirely within the fenced-in area of the
appellant's backyard. However, at some point throughout the
dispute over who should pay to have the tree pruned, a survey was
conducted and three new fences were built on all three properties
which now intersect with the tree.
Himel J., following last year's Ontario Court of Appeal
decision in Hartley v. Cunningham, held that trees with trunks
growing across property lines are common property, and that the
relevant part of the trunk is where the tree meets the roots. As a
result, she set aside the order against the appellant requiring her
to have the tree pruned, concluding:
 On the evidence before me, I am satisfied that the tree may
be commonly owned by the three properties abutting and that the
order of compliance requiring the cost of all the maintenance of
the tree to be borne by one homeowner must be set aside in these
circumstances. It will be for the City to take whatever steps it
deems necessary to address the issue of repair of the tree with all
the owners, having considered the current state of the tree, the
advice of the arborist, whether or not any portions of the
maintenance required can be attributed to a particular owner
because of where the branches overhang and the recognition of the
fencing that now exists surrounding the tree. Evidence of the
position of the owners of the abutting properties about the
maintenance of the tree should be before the Committee.
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Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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