One Tree – Two Neighbors – Big Problems!
We have all heard the old addage good fences make good neighbours. But what about trees? Trees can sometimes make good fences, but they don’t always make for happy neighbours.
Katherine Hartley is neighbours with Hilary Cunningham and Stephen Scharper (the “Scharpers”).
Katherine Hartley wanted to cut down a mature Norway maple whose trunk grew at the boundary with her neighbours. The Scharpers were opposed to the destruction of the tree. Ms Hartley sought and received a permit from the city of Toronto and notified her next-door neighbour that she planned to cut down the maple.
Ms. Hartley argues the tree is entirely on her property, is unhealthy and a safety risk. The Scharpers maintain the tree is perfectly healthy, safe and cannot be easily replaced.
This tree has lead to a drawn out legal battle between these neighbours regarding the fate of this Norway Maple tree.
At issue in this matter is the right of the Scharpers to assert an ownership right to a Norway Maple Tree that the respondents assert straddles the property line between the applicant’s and the respondents’ back yards. More specifically, the issue is whether the Sharpers enjoy an ownership right to the tree at all and therefore whether they can be heard to object to Ms. Hartley’s intention to have the tree removed.
In May of 2013 Justice J. Patrick Moore, the presiding Judge at the Superior Court of Justice who heard this dispute decided that a “boundary tree” (a tree whose trunk straddles a property line) is jointly owned by both property owners. Therefore, it would require the consent of both neighbours in order to cut it down. What was most interesting is that Justice Moore found that the tree was a “boundary” tree because part of the trunk rose over the property boundary, whether or not the trunk was on both properties at ground level.
This decision was upheld by the Ontario Court of Appeal in December of 2013.
This can prove to be problematic. It is easy to foresee how the canopy of a mature tree may extend into a neighbour’s property. Or, how the root system may begin to creep into the neighbour’s lawn. However, if the simple act of a tree ageing will lead to co-ownership, it is also easy to foresee disputes about how to deal with that same tree.