Can I Cut Down My Tree?
Those who own property in the Forest City will be aware of the value that mature trees can add to a property. Mature trees can provide shade, privacy, a home for wildlife, and can be a source of pride for many homeowners. However, trees can also be a nuisance to many neighbours — especially if the tree’s branches cross over onto their property and leave behind leaves, fruit, needles or pine cones.
When an issue with a neighbour’s tree arises, it is always a good thing to try and resolve the matter amicably since you will have to live next to your neighbour for the foreseeable future. Sometimes this sort of resolution is not an option and some property owners will inquire about their rights to either cut back the tree branches, or cut down the tree in its entirety.
The first issue about tree branches extending over and onto your property has a relatively simple answer. Branches and roots can create what is known as a private nuisance and one is allowed to take reasonable steps to abate the nuisance. This can include trimming the branches or roots back to the property line. In Gosselin v Blanchard it was held that you are within your rights in “defending your property by cutting off the branches of the tree or the roots that encroach onto their property, so long as it is done in a non-malicious manner.” It is important to note that you cannot enter onto your neighbour’s property for the purpose of abating the nuisance and you should avoid doing anything that could injure or kill the tree as this can be actionable.
The more difficult issue arises when the tree is a boundary tree. Section 10 of the Forestry Act, R.S.O. 1990, Chapter F. 26, states 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 and 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. In Hartley v Cunningham it was stated that the word ‘trunk’ should be given its ordinary meaning which is that part of the tree from its point of growth away from its roots up to where it branches out to limbs and foliage.
In Hartley v Cunningham the Court found that section 10 of the Forestry Act was applicable to trees whose trunk straddled a property boundary and that such trees are the common property of both neighbours. The removal of a boundary tree would therefore need the consent of both owners. However, in the more recent case of Freedman v Cooper involving a boundary tree Mr. Cooper did not consent to the removal of the tree and Ms. Freedman therefore obtained a permit from the City of Toronto allowing her to remove the tree due to arborist reports that the tree was in poor condition. There seemed to be an apparent conflict between section 10 of the Forestry Act which required consent of both owners and the permit issued by the City of Toronto allowing Ms. Freedman to remove the tree. The Court determined that this was a straightforward application of the common law of nuisance with the result that the tree must be removed.
The main difference between these two recent cases involving boundary trees seems to revolve around the health of the tree. In the case of Hartley v Cunningham the tree was a healthy tree and the courts followed section 10 of the Forestry Act. However in Freeman v Cooper the tree seems to be in poor condition and the courts ruled based on the common law of nuisance. It now remains unclear how the courts will decide issues relating to boundary trees due to these two conflicting decisions.
Ultimately, neighbour disputes are costly (over trees or anything else) and, if possible, are best resolved amicably.
Contact Brown Beattie O’Donovan to learn more about your options when considering tree removal.
