Neighbour’s  fights  re  mutual ownership  of  a  tree                     

 

One of the most perplexing problems facing next-door neighbours is the issue of one neighbour’s tree extending over the property line of a next door neighbour. Such a situation applied in my own case. One of our backyard trees had a branch that actually extended partway over our next-door neighbour’s roof. When the leaves began dropping into the gutter that gathers rain from our neighbour’s roof and clogged it, I had to remove that branch. 

I am going to tell you of a case that actually went to a British Columbia court that is similar to my own previous situation. Only in that particular case, it didn’t involve a branch of a tree but rather the root of a tree. This case should be of interest of all Canadians who have trees on their property since a decision of a court can apply in the courts of other provinces.

At issue in this matter was the right of one of the neighbours to cut down the other neighbour’s Norway Maple Tree that straddles the property line between the two neighbour’s back yards. The neighbour that wanted the tree cut down is Katherine Hartley and her neighbour is Hillary Cunningham.

Hartley sought from the Superior Court a declaration that she is the sole owner of the tree. The parties agreed that the applicable legislation is the Forestry Act of British Columbia which is unfortunately silent on any definition of what a tree trunk is but the legislation does state that every tree whose trunk is growing on the boundary between adjoining lands is the common property of the owners of the adjoining lands. In other words, both neighbours in this case own the tree. Of course that can be a real problem when the co-owners of the tree are at odds with one another over what should be done with the tree.                                                

It was common ground that if the tree is co-owned by Hartley and Cunningham, the latter must consent to the removal of the tree, a consent that Hartley was not prepared to provide.

Hartley nevertheless insisted that the focus of any consideration of whether or where a tree trunk crosses a boundary line must be directed only at the level where the trunk emerges through the ground. Cunningham argued that a tree, indeed this very tree, was a boundary tree when its trunk crossed the boundary line above its roots and beneath its leaf canopy.

Cunningham disputed Hartley’s assertion that the tree trunk was situated only on her property at ground level. She insisted that the level of the ground adjacent to a tree is a variable factor dependent upon how fill is placed against the trunk. A more precise point of measure and one consistently applicable to all trees require that the base of the tree is to be measured at the point at which the trunk meets the roots of the tree. A measurement taken by Cunningham’s expert at that point demonstrated that the tree’s root is on the boundary and for this reason, the tree therefore should be deemed as a boundary tree.

Mr. Radecki, one of the Cunningham’s experts, provided evidence in this matter. He explained that the applicant’s position that tree trunk position should be measured at ground soil level is arbitrary and although some municipalities use that measurement location for their purposes and while he is aware of competing definitions of boundary trees, he rejects them as being inconsistent with conventional wisdom. He stated, and the court accepted his reasoning, that a great deal of caution must be exercised when measuring trees at ground level. This is because establishing the base of the tree is often difficult and controversial. The base of the tree contains the root flare which may be broader than the trunk itself and the trunk of the tree at ground level is ambiguous and not necessarily a useful measure of where the tree trunk transfers into the root system (the true base of the tree). Focusing solely on the tree at ground level can lead to arbitrary results.

Cunningham retained an expert—Mr. Van Wassenaer is a certified arborist with twenty years of experience. He too was of the opinion that arborists (tree experts) determine whether a tree is a boundary tree by examining whether any part of the trunk crosses the boundary line. He maintained the conventional wisdom within the field of arboriculture is consistent with his stated view. From the perspective of a landscape architect, Ms. Speigel asked to look at the tree and he too concluded likewise that any part of the trunk over the boundary line makes the tree a boundary tree.

The judge hearing the case said in part;

“In my view, 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. In any event, it is not only the arbitrary point at which the trunk emerges from the soil that governs. I accept the respondent’s (Cunningham) evidence and submissions that to interpret the legislation otherwise may lead to anomalous results where a property owner chooses to add soil or other materials to the base of the tree to artificially raise the soil up and away from the roots, perhaps to a portion of the trunk, not on the boundary line.”

Even upon Hartley’s submission that it is the base of the tree trunk that is determinative of tree ownership, the expert evidence established that this particular tree measured against the property boundary at its base, where the trunk meets the roots, is actually located on the boundary line. Therefore the evidence supports Cunningham’s entitlement to co-ownership of this tree in any event. Despite this, the legislation in effect now no longer asks for evidence establishing who planted the tree, when and where with relation to the boundary line and whether it was or wasn’t planted with the consent of adjacent property owners.

The legislature streamlined the provisions in the previous legislation to eliminate these historical components so often difficult to prove. The object of the revision and consolidation of forest husbandry legislation leading to the enactment of the Forestry Act was to eliminate red tape; it succeeded in bringing boundary tree ownership determinations into the present and facilitates proof of ownership by readily ascertainable factual information and mathematical precision.

The legislation addresses the present time and focuses on where the tree trunk is “growing”. In circumstances where the trunk is growing on the boundary line, co-ownership follows, no matter who planted the tree. This is important in the instant case given that none of the parties knows who planted this particular tree. There is no evidence suggesting it was planted with the consent of adjoining owners at the time and there is some evidence suggesting it may not have been planted at all but grew from a seed blown by the wind.

Hartley asserted that the tree was unhealthy and that supports her wish to have it taken down. She however didn’t provide evidence to support that assertion and Cunningham presented evidence to the contrary. Her expert arborist had inspected the tree and found it to exhibit very good vigour and vitality and that it is in good overall health. 

Now if the tree was deemed to be unhealthy and beyond any hope of  recovery, the tree would have to be cut down since an unhealthy tree can later fall on its own and cause damage to property or injury to anyone nearby.                                        

The court ruled that the tree is in a reasonably safe condition and can be retained in that condition by application of a dynamic tethering system to its three main stems, a procedure that Cunningham offered to pay for but which Hartley had declined to accept. As such it is not a distinction without difference to say that Hartley’s wish to remove the tree falls short of an actual need to do so.     

Hartley appealed that decision but the British Columbia Court of Appeal ruled that both parties have equal say as to whether or not the tree can be removed. The penalty for illegally removing a tree that straddles a boundary line without mutual consent is punishable with a fine up to $20,000 and/or up to three months in jail.

I don’t have to worry about my two large trees in my backyard. Both trees are well inside my backyard so I and my wife solely own them.

Keep in mind that if you have a tree that has branches going over the boundary line, your neighbour can cut off that part of any branch that overhangs on your neighbour’s property. However if it will cost too much for that neighbour to cut off part of the branch, she can make you pay the costs for cutting off the part of the branch overhanging your neighbour’s property. In my case, I hired an arborist to excise the part of the branch that was going over our mutual boundary line.