Trees Can Provide A Sense of Peace, But Beware Potential Legal Issues
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They say the true meaning of life is to plant trees, under whose shade you do not expect to sit. As trees grow, they also help mitigate climate change - but what legal issues can trees present?
It is essential to check both provincial and local regulations. Trees are generally governed by the common law and the Forestry Act, R.S.O. 1990, c. F.26 (the “Act”). Individual municipalities may have additional by-laws for trees. The local by-laws can sometimes be more stringent than the provincial legislation.
Trees can be a source of dispute between neighbours, the most common of which arise out of a tree’s overhanging branches spilling over onto a neighbour’s property. Normally, property owners have control and manage trees within their property boundaries, but that control may be contested when it comes to boundary trees.
There is a difference between a boundary tree and a border tree.
Defined by s.10 of the Act, a boundary tree is a tree with a portion of a trunk on two adjoining properties. Case law indicates that a boundary tree is also determined by its roots, branches, leaves, and foliage. All owners are responsible for the maintenance of a boundary tree, and it can be removed only with mutual consent.1
On the other hand, a border tree is a common law creation and “encompasses trees whose trunks are solely on one property at ground level, but whose roots encroach into an adjoining property, or whose canopy of branches invades the air space above an adjoining property.”2 Border trees are subject to the law of nuisance which protects against harm and unreasonable interference with the enjoyment of property. Under common law, an owner may be allowed to prune or cut down a part of such a tree as a self-help remedy.
However, you may be sued for trespass such as if you unlawfully step over the private property of another, and/or perform an unlawful activity on that property. Whether you are a trespasser or not will depend on whether the tree is a boundary or a border tree. If the tree is a boundary tree, you are not entitled to enter a neighbour’s property. If it is a border tree, you are only entitled to trim the part of the tree overhanging into your property. If you prune any part of the tree within the neighbour’s property, this may constitute a trespass.
When your tree’s roots encroach onto a neighbour’s property and extend under a neighbour's house, they can do considerable damage by sucking water out of the soil, causing it to shrink and possibly also causing the house's foundation to subside. Your neighbour may sue you for damages.
In Oakville, trees located on private properties are governed by the Private Tree Protection by-law (the “Oakville by-law”), while trees on municipal lands are governed by the Halton Region Tree by-law 121-05.
The Oakville by-law prohibits the removal without permit of a tree with a diameter equal to or greater than 15 cm/5.9 inches, a tree planted as a condition of a site plan, or a tree planted in accordance with a program for planting larger caliper replacement street trees on private properties.
A permit for removal of a tree may be issued after an application is filed with a non-refundable fee, an arborist report, and the consent of the neighbour, in the case of a boundary tree. The application can be filed by anyone who is concerned. However, when the applicant is not the owner of the property where the tree is located, the applicant must obtain the consent of the said property’s owner.
Removing a tree without a permit will lead to monetary penalties and in some cases may be considered an offence. The fine can vary from $300 up to $10,000 or more.
No permit for the removal of a tree is required in the case of an emergency, but the owner of the property where the tree may fall, shall notify the Town of Oakville with photographs and information about the size and height of the tree.
Often, planting a new tree is the condition for granting of a tree removal permit. In this case, it is crucial to think through on which part of the property to plant the tree. Planting a tree close to the boundary line is a pretty way to fence off a space and create a sense of privacy and seclusion in the backyard. However, it could lead to future disputes with neighbours.
When the trees are mature, well-tended and colourful, they can increase enjoyment and add value to your property. Yet landscaping should consider the legal rights and responsibilities involved in planting, growing, and removing of the trees. Ignoring that could lead to fines and daunting disputes with neighbours, which on the other hand would negatively impact the value of your property.
1 Hartley v. Cunningham, et al, 2013 ONSC 2929
2 Koenig v. Goebel, 1998 CanLII 13635 (SK KB)
The foregoing should not be considered to be legal advice and should not be relied upon as such. Please consult a lawyer to get advice and an opinion on your unique circumstances.