Canada: Boundary Trees: Sometimes Good Fences Don't Make Good Neighbours

Last Updated: August 14 2015
Article by Kirsten Mikadze

The issue of boundary trees—trees that straddle property lines—appears to be a growing, and increasingly confusing, legal concern for Toronto neighbours. Earlier this year, the Ontario Superior Court of Justice was again asked to untangle a boundary tree-related dispute between two Toronto neighbours. The tree at issue in the decision (Freedman v Cooper, 2015 ONSC 1373)  was a mature Norway maple whose trunk straddled the boundary dividing the Freedman and Cooper properties. Ms. Freedman observed some damage to the tree following the ice storm in December 2013. Specifically, the tree had lost a third of its canopy and a fallen branch had damaged another neighbour's home.

After receiving reports from two arborists that the tree was in poor condition and posed a risk of further damage, the Freedmans sought Mr. Cooper's assistance and consent in having the tree removed. He refused and produced some evidence that mitigation efforts might reduce the risk of the tree's structural failure.

Eventually, Ms. Freedman obtained a permit from the City of Toronto to remove it. Perceiving a potential conflict between the Forestry Act, RSO 1990, c. F.26 and § 813-16 of the Toronto Municipal Code, she then sought approval from the Superior Court of Justice to remove the tree so as to avoid potential charges under section 10 of the Forestry Act.

Section 10 of the Forestry Act provides that

(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 Act,

This seemed to indicate that Mr. Cooper's consent would be required to destroy the tree, as its trunk was growing on the boundary between his property and the Freedmans'.

The Toronto Municipal Code, meanwhile, empowers the City's to issue permits for the destruction of trees.

This apparent conflict made it unclear whether Mr. Cooper's consent would actually be required, even with the duly issued permit.

The Court saw the dispute in a very different light than the parties, it seems. The case, the Court determined, did not turn on reconciling the seemingly conflicting provisions of the Act and the Code. Rather, the Court determined that the common law–specifically that relating to the tort of  nuisance–was wholly dispositive of the matter.

It noted at paragraph 26 of the decision that

there is no conflict [between the Act and the Code], and this case is a straightforward application of the common law of nuisance with the result that the tree must be removed.

Indeed, the Court interpreted section 10(3) of the Forestry Act (at paragraph 30) as

simply not applying to the owners of the boundary tree. The owners remain liable one to another in accordance with the common law. In my opinion, s.10(3)simply does not apply in the circumstances of this case.

This approach sits somewhat in contrast to that adopted in recent case law on boundary trees. Recent decisions have found that section 10 of the Forestry Act renders boundary trees common property, emphasizing the shared roles that neighbours play in decisions and costs related to their existence and maintenance.

For example, in Hartley v Cunningham (about which we have blogged previously), the Superior Court of Justice (whose decision was upheld upon appeal) found that section 10 of the Forestry Act prevented one neighbour from felling a mature boundary tree at some risk of causing damage without the consent of the other neighbour.

In contrast to the tree in the Freedman dispute, the tree in question in Hartley was determined to be generally healthy and would not, therefore, have constituted a nuisance. However, unlike in Freedman, the Court in Hartley clearly found section 10 of the Forestry Act applicable to trees whose trunk straddles a property boundary and that such trees constituted common property (paragraph 20), meaning that the consent of both parties would be required before it could be destroyed:

This tree is a boundary tree within the meaning of the Act, it is common property of the owners of the adjoining lands and its ownership is therefore shared by the parties.

Even more recently, the Superior Court of Justice presided over a dispute involving the allocation of the cost of  maintenance to a compromised, mature tree straddling the boundaries of 3 properties. In Jessica Laciak v City of Toronto (we've previously blogged about this decision, too), the applicant challenged a City of Toronto order compelling her to arrange for maintenance to the tree. The Court confirmed that because it was a boundary tree, section 10 of the Forestry Act was applicable–meaning  that the tree was commonly owned by the 3 property owners. As a result, it was not appropriate for the City could to order only one owner to bear the cost of the required maintenance.

It is somewhat surprising, then, that the Court in Freedman so easily dismissed the relevance of section 10 of the Forestry Act (as an aside, while the tree clearly posed some risk of future damage, this risk had not seemingly been identified by the City as meriting an order for its maintenance or destruction).

It is now unclear what rights co-owners of boundary trees have vis-à-vis one another to alternatively prevent or cause the destruction of the trees they share.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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