These questions and many more are covered in depth in the book. If there is a question not answered here or in the book please Contact Dunster & Associates and we will be pleased to offer you help.
What is the difference between a Border Tree and a Boundary Tree?
Ownership of a tree is defined by where the tree grows relative to the property line. A border tree grows close to but not over the property line or boundary. That means it is solely owned by the person on whose land it is growing. A boundary tree grows over the property line or boundary and so it becomes jointly owned. Traditionally this has been measured at the base of the tree where it meets the ground. More recently a few cases have used the location of the tree trunk to determine ownership, but this introduces additional difficulties. Chapter 3, Boundaries and Boundary Trees discusses these issues in detail.
If my neighbour cuts down my tree what can I do?
If you consider the tree to have been valuable to you, then first of all approach the neighbour and discuss a cash settlement. If that is unproductive you will need to sue the neighbour to recover damages. If the tree grew solely on your property, then the neighbour would have committed trespass to come onto your property and remove the tree. Trespass alone will be enough to trigger a legal claim. The value of the lost tree will be an additional issue for the court to decide upon. See Chapter 5. Trees Damaged Due to Trespass and Chapter 7. Valuing the Damage Caused.
When is a tree considered to be a nuisance?
Nuisance is a special area of law. To be a nuisance the tree roots or branches will have crossed over the boundary and caused one of several issues, ranging from inconvenience to actual damage. Not all cases of inconvenience will be supported in court if you sue the owner of the tree, but actual damage will usually lead to a court ordered remedy. The first step is to formally notify the tree owner of the problem and invite them to fix it. If they decide not to take any action you may then have an option of self help (see below) or you may decide to sue the neighbour to try and compel action to solve the problem. Leaves from the neighbour’s tree are unlikely to be seen as a nuisance unless it can be shown they cause actual damage of some form. Falling fruit actually belongs to the neighbour, so in theory you cannot legally pick it up and eat it, far less gather it and sell it. See Chapter 4. Trees as a Nuisance.
If you own the tree and have been notified that is causing a problem, you have to decide what to do. Your choices are usually:
- do nothing and ignore it (and accept any penalty later on if the claim is supported)
- retain a qualified professional to look at the tree and see if they agree with the claim (be sure to get permission for that person to enter onto the neighbour’s land in order to inspect the tree)
- accept the claim as stated and pay for the problem to be fixed
What is the self help rule?
The self help rule applies across Canada except for Quebec. As long as there are no local bylaw restrictions in place, the self help rule states that the person suffering nuisance caused by overhanging branches or encroaching roots may cut these back to the property line without asking permission of the tree owner (the neighbour). However, this cutting must not cross the vertical projection of the property line. The moment it does, then a trespass has been committed, and the tree owner may have a valid claim against you for trespass leading to tree damage. A cardinal rule here is to ensure you know exactly where the property line is located. Hedges and fences are seldom an accurate representation of the exact property line location. Get the line surveyed by a licensed surveyor if there is any doubt. It will be far cheaper than dealing with a trespass claim. See Chapter 4.4. The Self Help Issue
A new development next door cut back the roots of my tree and it is now dying. Can I sue the developer?
If there are no local bylaws restricting such activity, then the developer is legally entitled to cut back roots to the boundary line but not beyond it. If that work kills or destabilizes your tree you have no legal recourse to prevent it, unless you live in Quebec, where the laws are quite different.
How does Quebec law differ from the rest of Canada?
Quebec is governed by the Civil Code. This lays out in detail every conceivable situation to be governed and prescribes how that is to be accomplished. Chapter 8. Tree Law in Quebec provides a comprehensive review of these issues and the corresponding Code Article that applies.
If my neighbour’s tree falls on my property who pays?
Two situations typically arise. If the tree that falls into your property causes no damage but simply make a big mess, you may be solely responsible for all of the cleanup costs. It might be nice if the neighbour offered to help or cover some or even all of the costs, but there is no obligation on them to do so. If the fallen tree causes damage, such as landing on your car, or damaging the house your insurance policy may cover the physical damage, maybe even the cleanup costs. If the insurance company chooses, they may then seek to subrogate these costs by trying to reclaim them from the neighbour’s insurance company. If you had warned the neighbour about your concerns with their tree, and they had not taken any steps to deal with the tree that may complicate matters. However, merely warning a neighbour simply gives them actual notice. Conceivably, if they had it inspected by a properly qualified person, and nothing untoward was discovered, it may be that you don’t have a claim to pursue. Each case will be judged on the specific details.
How much is my tree worth?
There are industry standard ways to determine tree values. If the lost trees were being grown for timber or pulp fibre then a forestry approach will be used to determine wood volumes and grades, and operating costs. If the trees were grown for amenity alone then one of amenity appraisal approaches discussed in the Guide for Plant Appraisal would be the correct measure of damages. The many approaches and case law are discussed in Chapter 7. Valuing the Damage Caused. These issues also arise in Quebec and are discussed in Chapter 8.6 Case Law on Valuation and Restitution Approaches. Plant appraisal for timber or amenity cases is a specialized area of expertise and should be undertaken by properly trained people.
If a person is injured by a falling tree what happens?
In broad terms, the issues will focus on Standard of Care (Chapter 2. Legal Principles and Concepts) and Foreseeability (Chapter 6. Negligence, Foreseeability, Tree Damage to Property and People). In Quebec, see section 8.7.4 Inevitable Accident and Issues of Foreseeability in an Injury. The injured party will have to show that, on a balance of probabilities, the tree was clearly defective prior to failure, and that the owner knew or ought to have known of its condition and taken the appropriate steps to prevent it falling down and causing injury. Each case will have its own specific circumstances to consider and may well require special expertise to investigate the matter. Typically, that will be a forensic investigation of all the available evidence, a detailed review of the standard of care expected, what actually happened, and an opinion about whether or not this met the standard of care. Such work is almost always done by experienced consulting arborists who have the range and depth of experience to conduct these investigations.
I have an easement over the neighbour’s land that allows me a right of way. One of the trees has now grown so big I can no longer drive through the land. What can be done?
This will depend almost entirely on the wording of the easement. Each situation is slightly different and the entire easement agreement would need to be scrutinised by a lawyer to determine your legal rights. You may not have an automatic right to cut back the offending tree, so check first. As always, a constructive relationship with the easement holder is generally far simpler and cheaper than going to court. Similarly, the easement holder may find it is best to work with the easement user rather than trying to be obtuse and prevent use of the easement.
A neighbour’s tree is drying up the soil and causing my house foundations to settle. Can I sue for damages?
Trees growing on clay soils can cause the clay soils to shrink and this may lead to movement of the foundations. These issues are far more common in Quebec than the rest of Canada. See section 4.2 Trees as a Nuisance – Roots and Subsidence. For Quebec see 8.5.2 Clay Soils – Roots and Foundations.
My trees have been damaged by chemicals drifting or seeping onto my land. Is the neighbour liable for the damage to my trees?
There are several cases where herbicide has drifted over the boundary and caused plant damage. Similarly, the use of road salt soaking into the ground water and causing plant damage elsewhere is well documented. See 6.10 Chemicals – Salt – Herbicide and in Quebec, see 8.7.1 Trees and Salt.
