A recent decision of Ontario’s Superior Court has changed the law on the rights of property owners to cut down trees which straddle the property line. The ruling in Hartley v. Cunningham and Scharper has not received much publicity but the long term implications are big.
As a matter of law, it has been generally accepted that if a tree is entirely on your property, that you do not need your neighbour’s consent to cut it down, despite the fact that branches are overhanging. Most of the court cases have confirmed the general principle that, to determine if a tree is entirely on one’s property, you look at the base of the tree at ground level.
However, this changed as a result of the Hartley case. The Hartleys wanted to cut down a Norway Maple in the back yard of their home in Toronto. They got the necessary permit from the City of Toronto but because of the objections of their neighbours, Cunningham and Scharper, they decided to go to Court to confirm their right to remove the tree. The Hartleys were afraid that the tree would come down and do damage to their house. However, the evidence in court showed that the tree was healthy and any concerns by the Hartleys could be met with the installation of a tethering system, for which Cunningham and Scharper had offered to pay.
The tree in this case was entirely on the Hartleys’ side of the boundary if measured at ground level. However, Justice Moore ruled that the tree was a “boundary tree” because the measurement should be taken where the “trunk meets the roots of the tree”. This can be below the ground. If measured this way, the tree was on the boundary and thus, it was co-owned, regardless of the history of the tree (ie who planted it etc.). Some legal pundits have nick named this principle, “shared trunk means shared tree”. Justice Moore also said that since there is no definition in the Forestry Act of Ontario, he had to set out this principle.
A word of caution. Most municipalities have passed by-laws dealing with removal of trees. They are not all the same. If you have this situation, you should first check to see if the by-law has specific direction in it defining how to decide ownership (The City of Toronto did not apparently). Then, you need to read the Harley decision to see if you fit within the Judge’s ruling. Finally, the Hartleys have filed an appeal (to the Court of Appeal) so stay tuned.
Michael E. Cobb is a lawyer at the law firm of Cobb & Jones LLP. Should you have any questions for Ask A Lawyer, please direct them to the Simcoe Reformer or ask a lawyer of your choice. For more articles, visit the Library page at www.cobbjones.ca.