Whose Tree is it Anyway? Boundary Trees and Neighbour Disputes

Kaleigh Dryla
October 3, 2016

Those who own property will be acutely aware of the value of trees. Not only are they most often aesthetically pleasing, but they also provide privacy from surrounding properties or streets. Large and older trees are often a source of pride for homeowners. Perhaps it was planted by a relative or loved one, perhaps it was where your children or grandchildren played. Such trees are carefully maintained. However, as will often be the case, part of your beautiful tree will at some point, cross over onto your neighbour's property.

Of course, not all neighbours will feel the way you do about your tree. Trees result in leaves, cones, needles, nuts, or other various droppings. These must be collected and disposed of. Neighbours may have plans for their property that do not involve your tree. They may have a pool which will require constant maintenance due to your tree.

Such neighbours may, at some point, approach you to discuss the removal of your tree. This conversation will hopefully result in an amicable solution. However, there will be times when this conversation results in the relationship between you and your neighbour dissolving. Then you are left with the distinct impression that no matter what you say, your neighbour will cut down your tree.

Disputes between neighbours regarding shared tree removal are far more common that you might imagine. Legislation and case law on tree removal is plentiful. The first question is always the same: whose tree is it?

What Is The Law?

To explore the ownership of the tree, one must look to both the legislation and the case law. The Forestry Act, R.S.O. 1990, Chapter F. 26, is Ontario legislation which relates to the protection of woodlands. It is therein stated at section 10(1) that the owner of land may plant trees on the boundary between adjoining lands, so long as the owner of the adjoining lands consent. All trees whose trunk is growing on the boundary between adjoining lands are considered shared property. Finally, anyone who injures or destroys a tree growing on the boundary between adjoining lands without consent of the land owners, will be guilty of an offence under the Forestry Act. You may then wonder what exactly constitutes the trunk of a tree. The Forestry Act does not define this term, so we must turn to the case law. The Ontario Superior Court Case Hartley v Cunningham 2013 ONSC 2929 states that the Forestry Act “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.” It is not only the point from which the tree emerges from the soil.

Thus a tree will be considered a “boundary tree” if the roots are contained entirely on one person’s property, but the trunk of the tree grows at an angle such that it crosses the property line. The part of the tree below the branches and leaves is considered the trunk in its entirety. One must examine how the trunk grows, and if it crosses the property line to determine if the tree is shared.

So you have determined the tree is a boundary tree, or perhaps, the tree is entirely on your or your neighbour’s property but branches and roots cross the property line. What can one do?

The Town of Oakville has gone to great lengths to protect its trees. Pursuant to the Municipal Act, 2001, S.O. 2001, c.25, as amended, the Town of Oakville has passed By-Law 2008-15, or a by-law to regulate or prohibit the injury or destruction of trees on private property within the Town of Oakville.

This is the by-law prohibits anyone from injuring or destroying a tree on private property in the Town of Oakville with a diameter greater than 76 cm without a permit. Thus if the tree on your property is large enough and old enough to have a diameter of 76 cm or more, then there is some protection. Obtaining a permit is a hurdle, it requires filing forms, paying fees, perhaps obtaining the report of an arborist, and obtaining neighbour consent.

The decision to grant or refuse the permit lies with the official designated by the Town of Oakville, this individual has wide discretion to decide. It also allows a neighbour seeking to prevent the removal of a tree the opportunity to plead his or her case for saving the tree. Penalties under the By-Law can be quite severe. Contravention, which may result in conviction if caught, will result in a fine of at least $500.00, a maximum penalty of $100,000.00. Ultimately it is certainly worth looking into before you simply begin cutting.

If your tree is less than 76 cm in diameter, the By-Law offers little protection.

However, both the provisions of the By-Law and the Forestry Act will be applied to the extent they are consistent with each other. In Scheuermann v Gross, 2015 ONCJ 254, it was held that a couple who had obtained a permit to remove a diseased boundary tree through the City of Toronto, had an onus to obtain the consent of their neighbour as is required by the Forestry Act. Ultimately the question is not necessarily black and white as to what can be done about a boundary tree, or overhanging branches and roots. The general common law principle is that one is entitled to prune the encroaching branches and roots on his or her property, without consideration for the health or survival of the tree. This principle will be subject to any applicable municipal by-laws or provincial acts.

What Can You Do?

You want to protect your tree, perhaps it is not covered by the municipal by-law, perhaps there is overhang which is creating a nuisance for your neighbour. In terms of keeping the tree, your consent is required for its removal. Your neighbour has no right to enter onto your property to remove any part of your tree without your consent, without an order of the Court. Thus, you have some power to stop the entire tree from being removed.

In terms of preventing your neighbour from cutting back encroaching branches and roots, there is not much you can do. Branches and roots can create what is known as a private nuisance, one is allowed to take reasonable steps to abate that nuisance, even if this results in the death or instability of the tree. Again, your neighbour can only cut back parts which reside wholly on his or her property, they have no right to enter onto your property for the purpose of pruning or removal.

As a caution for those refusing consent to removal, if it is found the boundary tree is a hazard or is diseased, and you refuse to have same removed, you could open yourself up to liability if that tree or any part thereof falls and injures person or property.

So whose tree is it? If the tree is on the property line, it is shared. The question then is what can be done to the tree on consent, and what can be done absent the consent of one party. The above should be considered a primer, if you want to discuss any and all options available for saving or removing a boundary tree please contact us.