Boundary trees are trees that are planted between adjoining lands and are governed by section 10 of the Forestry Act, R.S.O. 1990, c. F.26. If boundary trees are planted or cut down without permission from both neighbours, disputes can arise.
Section 10 of the Forestry Act states that an owner of a land needs permission from the owner of the adjoining land to plant a tree on the boundary line between the two properties. This section further states that a boundary tree is common property of the owners of the adjoining lands (s. 10(2)), and if a boundary tree is cut down without consent from both owners, the person who cuts it down is guilty of an offence under this Act (s. 10(3)).
Section 19 of the Forestry Act outlines the penalties for committing an offence under this Act is a fine up to $20,000 and/or imprisonment of up to 3 months.
In a dispute over ownership rights to a Norway Maple Tree on a property line, the court in Hartley v. Cunningham et al, 2013 ONSC 2929, ruled that S. 10(2) of the Forestry Act includes the entire trunk of the tree, up to where the limbs branch out, not just the part of the trunk emerging from the ground. The court further confirmed that boundary trees are owned by both parties, no matter who planted the tree.
What if the boundary tree is a nuisance?
A neighbour may argue that a boundary tree constitutes a nuisance. A nuisance is an interference with a property that is unreasonable and substantial (Antrim Truck Centre v. Ontario (Transportation) 2013 SCC 13).
The court in Freeman v. Cooper, 2015 ONSC 1373, held that if a boundary tree is found to be a nuisance, the Forestry Act does not apply anymore to the facts of the case. Further, the court in Davis v. Sutton, 2017 ONSC 2277 stated that a co-owner of a boundary tree cannot be unreasonable in refusing to consent to cut down the tree to prevent further nuisance.
In Gross v. Scheuermann, 2017 ONCJ 722, there was a dispute over a boundary tree and the appellate court upheld a conviction against Gross and enforced a fine of $5000 for removing a boundary tree without the other co-owner’s consent. Gross argued that the tree posed an imminent hazard, but the court disagreed because he waited three and a half years after obtaining a municipal permit to cut it down non-consensually. The municipal permit even included a condition which addressed the rights of the co-owners. The court also stated that the lack of urgency Gross demonstrated negates the fact this boundary tree could have constituted a nuisance.
The court in Allen v. MacDougall, 2019 ONSC 1939, also addressed boundary trees as nuisances in a dispute where a boundary tree has prevented the construction of an addition to one of the neighbour’s homes. The court held that this boundary tree did not amount to a nuisance because it has not caused damage to the property and did not prevent the enjoyment of the property; it has only prevented building an addition onto the home.
In Allen, the court further considered that the tree is a defining characteristic of the property, and the tree was there when the applicants moved in, and for almost two decades, they have enjoyed their property without considering the tree a nuisance. The case establishes that a boundary tree will not be considered a nuisance if it only interferes with future use of a property by a co-owner of a tree.
These decisions indicate that dealing with neighbours and boundary trees can be complex. The outcome of every case is dependent on upon its facts and the skill of the lawyer representing the parties. The Lawyers at Daniel and Partner’s LLP can help in boundary disputes amongst neighbours. If you need legal support for boundary disputes, contact us today.