A Tale of Two Neighbours (And One Boundry Tree)

June 28th, 2013 by Dan Stone

This blog is written by our law summer student, Ira Marcowitch

If a tree falls in a forest, it may not make a sound; but in Ontario, if a tree straddles two properties (a boundry tree), it may not be able to fall at all. In Hartley v. Cunningham, a decision released on May 17, 2013 the Ontario Superior Court had to tackle this very issue. Ms. Hartley and Ms. Cunningham had been neighbours for some time when, in June of 2012, Ms. Hartley had decided to cut down the maple tree in her backyard. The tree had become overgrown, and she was concerned that at some point parts of it may break off and do significant damage to her property. She received a permit from the city of Toronto to do so, and notified her neighbours of her intention, which they did not agree with. This triggered a year-long battle, fought first by shouting matches in the driveway and finally concluded in the court room.

At issue was whether the tree was a ‘boundary tree’ (a tree that straddles two properties) under the Forestry Act, and thus required the consent of both property owners to cut down. Under the Forestry Act, a boundary tree is one where the “trunk is growing on the boundary” of the properties, and unilaterally cutting one down can attract a hefty fine or jail time. Thus the court faced the deep, philosophical question of “what is a tree trunk?”

Ms. Hartley took one side of the debate, and argued that the ‘trunk’ of the tree was to be measured at the absolute base of the tree. Since the absolute base was completely on her property (by about 3cm), she argued that it was not a boundary tree and thus required no outside consent to cut down. However Justice Moore, siding with the Ms. Cunningham’s more holistic definition of a ‘tree trunk,’ found that the trunk was to be contemplated as the entirety of the tree “from its point of growth away from its roots up to its top where it branches out to limbs and foliage.” Given this, and the fact that the mid-trunk veered over the property line, the court found that the tree was indeed a boundary tree and that no action could be taken on it without the consent of both neighbours.

While the dispute may seem trivial at first, this ruling has clarified an area of law that has the potential to affect countless people. Firstly, the Justice Moore’s broad definition of a ‘trunk’ gives an extra measure of protection to trees that, though planted on one property, have since extended over a boundary. Given that contravention of the ‘boundary tree’ provision can result in $20,000 fine or imprisonment, this is an extra measure of protection, indeed. Second it, in a way, redefines what constitutes shared property between neighbours. A tree is now common property if it simply straddles a boundary; it doesn’t matter which neighbour actually planted the tree or maintains it. Given the number of trees in our city, and how many straddle (at least in the legal sense) property boundaries, Justice Moore’s ruling has hopefully clarified a previously grey area of law regarding boundry trees.

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