A tree’s trunk and roots growing across property lines, overhanging branches, and falling branches and leaves are common nuisances when it comes to private property. When disputes over trees arise, they fall primarily under three main tree law issues: loss of privacy, trees on boundaries, and the self-help rule.
LOSS OF PRIVACY
Many tree trespass cases across Canada involve claims for damages involving loss of privacy and screening. Loss of privacy can be defined as the actual or potential non-consensual intrusion of people or unwanted views into a formerly secluded or “private” area. Screening is defined as a physical barrier which shelters or blocks, often in the form of a hedge or group of plants such as trees.
The foundation for a loss or change of screening claim is that the change in screening now permits an easy line of sight into a formerly private and secluded area; or that the loss of screening now no longer hides something that the plaintiff does not want to see. Other cases which involve large properties may include claims that the loss of screening and tree damage negatively affects a sense of remoteness and seclusion from neighbouring houses and people.
Cases involving claims for loss of privacy or screening can become complicated and should be carefully analyzed. In some instances where loss of screening has occurred as a result of trespass, it can sometimes be the case that the lost screening resulted from legitimate activity, meaning, even if trespass had not occurred, the screening provided by the trees would have changed once legitimate pruning had taken place. Further, if pruning or damage occurs not in trespass, any loss of screening or privacy is not actionable. However, if trespass does occur, the court may consider loss of privacy as part of the final award of damages.
There is no established precedent for how an award for loss of privacy should be calculated. When considering an award for loss of privacy, the location and remoteness of the damage or loss concerning the distance from the house or any primary-use area is a significant determining factor. Further, if the damaged land and loss of privacy can easily be cured by natural regeneration, the final award may be reduced. One established requirement in every privacy or screening loss case is that the loss of privacy must be proven. If it can be shown that the pre-existing screening did not effectively provide privacy, then the damages may be diminished.
TREE BOUNDARIES
Another common issue regarding tree law is where to measure a tree to determine property ownership. Many tree trespass cases also involve instances where the trunk and roots of a tree are on both sides of the boundary line of adjoining properties. It is a well-established law that such trees are considered jointly owned by the adjoining property owners. This means neither property owner may harm, damage, or remove the jointly-owned tree without the consent of the other.
KOENIG v. GOEBEL [1998] S.J. No. 31
The case, Koenig v. Goebel [1998] S.J. No. 31, is commonly cited in tree matters. The case involved a border tree whose trunk was solely on one property; however, the tree’s roots were encroaching onto an adjoining property. Following this case, case law has defined prominent terms relating to tree law in Canada. The term “border tree” is defined as a tree whose entire base, including the trunk and visible root, is entirely on one side of the boundary line, but the tree’s branches and roots may extend onto an adjacent property. A “boundary tree”, however, is a tree where part of the trunk and visible root is crossing the boundary line, either straddling or growing across it.
HARLEY v. CUNNINGHAM 2013 ONCA 759
There has been little consensus regarding how to measure trees to determine property boundaries and ownership. The location of the trunk and visible roots and where it meets the ground was used to determine ownership under the Civil Code of Quebec. However, in Harley v. Cunningham 2013 ONCA 759, a different approach was considered, using the measurement of the tree at the point where the trunk meets the roots. However, this led to uncertainty, and was determined to be a difficult and unreasonable measurement. An added complication with measuring arises with leaning trees, where a tree leans over or across boundary lines. There is still no certainty regarding how to measure a tree to determine ownership.
SELF-HELP RULE
One of the most common issues between neighbours concerning trees is overhanging tree branches and roots growing across property lines. The foundation for what is known as the “self-help” rule was established in Lemmon v. Webb (1894), regarding overhanging branches. The self-help rule involves trimming or pruning back a tree’s roots or branches that are overhanging the property boundary to abate a nuisance without trespassing. The rule states that even if damage occurs while trimming or pruning back a tree, if there was no trespass, there is no valid claim for the resulting damage. As long as there is no other local bylaw stating the contrary, trespass is the only restriction on self-help when trimming branches or roots that overhang onto your property.
Recently in B.C., municipal bylaws have been introduced to attempt to define tree damaging activities and prohibit trimming of branches or roots above a certain size or trimming in certain ways that may harm the tree. This is also in an attempt to reduce or prevent damage that can occur when the self-help approach is undertaken.
In Quebec, the Civil Code of Quebec states what can and cannot be done regarding trees close to boundary lines. If a tree is jointly owned, both parties are responsible for the tree and neither owner may cut or remove it without the consent of the other owner. Any encroaching roots or branches on solely owned trees cannot be trimmed without first asking the owner to do so. Without the permission of the owner to prune the tree, any applicant must apply to the court for an injunction, requesting the work to take place. If a self-help approach is undertaken, the court will likely find fault and impose a financial penalty.
The self-help approach may be utilized as a remedy to abate certain nuisances regarding overhanging tree branches and roots in certain situation, however, the circumstances in which the approach can be adopted may vary significantly. If there is no bylaw that states otherwise, and no trespass or damage occurs, then the self-help rule may be a valid solution. Alternatively, if there is an applicable bylaw and/or if trespass, or damage or injury occurs, the self-help approach can be very problematic.
We strongly recommend that individuals seek legal advice when facing decisions involving neighbours, nuisances, trees and trespass. If you have any questions, please contact us at (604) 736 9791 or email Alex Robertson ar@dwslaw.ca.
Disclaimer: This article is not intended to serve as, or should be construed as legal advice, and is only to provide general information. Should you require legal advice for your particular situation, please get in touch with us. The information for this article was compiled on September 2, 2021. Any updates made to the article can be found at dwslaw.ca/articles.