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Barking Up the Wrong Tree
Walter Drescher
Walter Drescher

Now that the weather is so nice outside these days I am often asked by property owners to tell them about their rights with respect to trees and hedges that grow on or near their property lines. Here are three hypothetical case situations followed by a description as to how the law in Ontario would apply to each of those situations: Case I A large tree growing entirely on Jerry's property had two main branches, one overhanging his property and one overhanging his neighbour's, Cosmo's, property. Wind damage to Jerry's side of the tree caused the branch some damage and now the tree leans and the overhanging branch, in turn, rested on Cosmo's garage. When Cosmo cut off the branch on his side of the property he split the tree down its trunk killing the tree. Question: Can Jerry successfully sue Cosmo for the loss of Jerry's tree? Case II Homer obtained all of the necessary permits and approvals to build an addition on the rear of his house but that meant the removal of some of the roots from the tree that grew on his neighbour, Ned's property, which had crept underground into Homer's back yard. Excavating the basement for the addition damaged the roots on Homer's property killing Ned's tree. Question: Can Ned successfully sue Homer for the loss of his tree? Case III A tall hedge grew right on the boundary line between Lucy's and Ethel's property. Lucy wanted to remove the hedge and Ethel was adamantly opposed. When Ethel was away on holidays Lucy tore up the hedge. Question: Can Ethel successfully sue Lucy for the loss of the hedge on the common boundary. Here is how the Ontario law would deal with the above cases. Case I Too bad Jerry, Cosmo can't be sued for ruining your tree. Though Jerry owned the tree, Cosmo was lawfully entitled to remove any part of it that overhung onto his property without getting Jerry's approval first. Cosmo would not be responsible to Jerry for any damage to the tree by trimming it. That's the case even if the cutting back of the offending branches jeopardizes the ability of the tree to survive the cut. Case II The same law applies to removing roots as to trimming branches. Though the trunk was located entirely on Ned's property Homer could remove any branches or roots which would interfere with the peaceful enjoyment of his property, including the right to build on it. In other words, Ned cannot successfully sue Homer for killing his tree. Case III Trees growing on the boundary line often cause significant problems. As one Judge said "there is very little authority on this rather common place problem of the ownership of boundary trees." The answer to this question could be yes or no depending on the facts. Ethel's rights against Lucy depend on whether or not the boundary hedge was planted with the common consent of the owners (or the former owners) of both lots. If it can be shown (and the onus of proof is on Ethel). The Tree Act of Ontario makes the hedge the common property of both Ethel and Lucy. Then it is an offence, subject to a $1,000.00 fine, for one party (Lucy) to injure, destroy, trim, cut down or remove a boundary tree without the consent of the other owner (Ethel). Damages might be recoverable against Lucy, too. What if Ethel can not show that the hedge was planted with the mutual consent of the previous owners? In that case, the hedge is not common property and neither party would own the hedge either. "Proprietary rights that arise out of the growing of trees on boundary lines exist only in the case where the trees are planted with the consent of the owners." Without any property rights in the hedge Ethel could not stop Lucy from uprooting it. This means either Lucy or Ethel could remove the hedge, without the other's consent. This would also mean that Ethel would not have any damage claim against Lucy for arbitrarily removing the hedge. As we have seen, even if the hedge was located entirely on Ethel's land Lucy could remove any part of it on her side that interfered with her use of the property. Just because the hedge is located on the boundary line does not give Ethel any greater rights. "Absent the provisions of the Trees Act ... I cannot see how the situation would be different merely because the trees happen to grow on the boundary line." That is why Ethel's case will hinge on the facts. To be successful Ethel must establish a common consent by her and Lucy (or the previous owners) to plant trees (or a hedge) on the boundary line. Unfortunately, Ethel simply can not just rely on the fact that the hedge is "there", on the boundary line, as proof of that common consent. If Ethel can not find that evidence, then Lucy will be off the hook.