• Boundary Trees - Branching Off and Getting to the Root of the Problem
  • July 8, 2013 | Author: Raivo Uukkivi
  • Law Firm: Cassels Brock & Blackwell LLP - Toronto Office
  • 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 rights.

    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 applicants property.

    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 improvement.

    1 Hartley vs. Cunningham et al., 2013 ONSC 2929 [Hartley].
    2 Forestry Act, RSO. 1990, Chapter F.26 at s 10(2).
    3 Ibid at s 10(3).
    4 Supra note 1 at para 14.
    5 Supra note 2 at s 19 (1).