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Can I cut down my neighbour's tree?

A tree is often a thing of beauty, but what started from a sapling can grow into a very big problem.

Cutting down a tree may seem as simple as revving up the chainsaw, but can end up costing you tens of thousands of dollars and possibly land you in prison.

The problem lies underground, as a tree’s trunk and root system can straddle more than one property. Legally, the trunk is defined as the area of the tree that extends from the start of the root ball to the start of the branches.

In 2012 a dispute between two Toronto neighbours, who shared a tree, ended up in court.

The legal tussle in Hartley v. Cunningham et al. started when one resident, Katherine Hartley, decided she wanted to cut down a large maple tree in her backyard and got a permit from the city, based on an evaluation from an arborist, whom she hired.

Neighbours Hilary and Stephen Scharper objected, as the tree's roots, branches, and trunk also grew across their property line. They also paid for an arborist, who told them the tree was healthy and just needed to be secured to the ground via cables, which they offered to pay for.

The woman who wanted the tree removed sued her neighbours, but lost based on the Ontario Forestry Act (s. 2), which protects trees that grow across property lines. The case was the first time that the Forestry Act was applied in an urban setting.

The actual law states: “Every tree whose trunk is growing on the boundary between adjoining lands is the common property of the owners of the adjoining lands.”

Unlawful removal of a tree can come with a fine of up to $20,000 or a maximum of three months in jail. Under the City of Toronto Municipal Code, fines can range as high as $100,000.

The Scharpers’ win was deemed a landmark case, because it went against previous case law that had generally established if a neighbour’s tree trunk — measured at ground level — crossed the property line, it remained that neighbour’s tree and the adjoining property owner had no rights to it apart from trimming back branches.

In that scenario Hartley could have had the tree removed without her neighbour’s consent. Now, a tree trunk that crosses a boundary line — on or below ground — is the property of both parties.

Cases, however, differ from province to province.

In a 1993 case, Anderson v. Skender, the British Columbia Court of Appeal ruled that neighbours aren’t allowed to even arbitrarily trim branches, as it constitutes a type of trespassing. “It is those who cut them who may in so doing trespass on the land, or air space, of their neighbours.”

A 1998 Saskatchewan court decision, Koenig v. Goebel, identified a difference between “border” and “straddle” trees, with the former classification denoting a tree whose trunk – at ground level – was firmly on one side of the property line, but whose branches or roots encroach on an adjoining property. In this instance the neighbour whose property is being encroached on by the tree is “legally entitled without notice to cut those branches and roots of a neighbour's border tree," even if that action causes the death of the tree.

In the case of straddle trees — those whose trunk rests on a common border at ground level — consent is required prior to trimming or any other action involving the tree. The rendering also grouped straddle trees into the following three sub-categories:

  • Consensual trees: those trees planted along a common boundary with the consent of the adjoining property owner;
  • Straying trees: those trees planted on one property whose trunks have expanded onto a neighbouring property;
  • Voluntary trees: those trees whose origin are unknown.

Read more:

Ontario Forestry Act 

Hartley v. Cunningham et al.