Law Times

Law Times • June 9, 2014 Page 9 www.lawtimesnews.com Commonly owned boundary trees a vexing issue Municipal order rescinded due to lack of consent from multiple owners By marg. Bruineman For Law Times he concept that a tree trunk growing on a property line makes it a tree commonly owned by the adjoin- ing property owners is a long-ac- cepted notion. It's where the trunk ends and the roots begin that complicates the issue. Two recent cases demonstrate the issues that can result when a tree belongs to more than one property. Among the rules complicating property ownership are those re- lated to trees. The Forestry Act "is counterintuitive for a lot of peo- ple," says Michael Foderick who practises municipal planning and real property development at Mc- Carthy Tétrault LLP. In the urban development and real property context, Foderick says the issue can prove problematic for developers. Ex- tensive root systems and trunks growing across property lines can give one party power to prevent redevelopment. "The moral of the story is if you have a tree even near a property line, approach it carefully," says Foderick. "The biggest ramifications here are really the consequences for development." The Forestry Act stipulates that a trunk growing on a boundary between adjoining lands is common property. There's no definition of a trunk, so the application judge in Hartley v. Cunningham turned to the dictionary. It defines a trunk as that part of the tree from its point of growth away from its roots up to where it branches out to limbs and foliage. At issue was a Norway maple tree a Toronto property owner wanted removed because it was potentially haz- ardous. The adjoining neighbour opposed the idea, ar- guing the tree was healthy and that, as it straddled both of their backyards, they shared ownership of it. Justice J. Patrick Moore of the Superior Court of Jus- tice found that trees with trunks growing across prop- erty lines are common property requiring the consent of both owners to destroy. The Ontario Court of Appeal upheld that decision. That shared approach became the focus earlier this year in the Ontario Superior Court of Justice case of Jes- sica Laciak v. City of Toronto. The city had ordered Laciak under the Building Code Act to prune a tree in the backyard of her High Park home in Toronto. She argued that since the survey showed the roots of the Carolina poplar tree were on at least two oth- er properties, she shouldn't be solely responsible. After the city issued orders to two other property owners, they took the matter to the property standards committee. It rescinded that order. In a separate hearing, the committee confirmed the order for Laciak to prune the tree. Laciak, who said she had paid $1,700 to clean up a portion of the tree, worried it might cost as much as $10,000 to prune it and believed her neighbours should contribute. The court agreed. "I am satisfied that the tree may be commonly owned by the three properties abutting and that the order of compliance requiring the cost of all the maintenance of the tree to be borne by one homeowner must be set aside in these circumstances," wrote Justice Susan Himel of the Superior Court of Justice. The Laciak case illustrates the need for municipali- ties to factor in the common ownership of trees, says Ja- mie Spotswood, a civil litigator whose practice includes real estate law at Lenczner Slaght Royce Smith Griffin LLP. "The city needs to account for co-ownership in making these compliance orders," he says. "It was an afterthought by the bylaw officer to add the other parties." The court rescinded the mu- nicipal order because there was no unanimous agreement to do the work by all of the tree's owners. The implications, like the roots of the tree, are significant, says Calvin Lantz. Under the revamped Forestry Act, injury to or destroying a com- monly owned tree or removing dead or diseased limbs requires the consent of all of the owners. And that, says Lantz, a certified special- ist in municipal law and partner with Stikeman Elliott LLP, can prove quite problematic. "Instead of reading into the Forestry Act a principle that would recognize that a munici- pal order to prune a commonly owned boundary tree overrides the consent require- ments in the Forestry Act, the court rescinded the mu- nicipal order on the basis of there being no unanimous consent to such work by all tree owners and the munici- pality cannot enforce its order against only one of the owners of the boundary tree," he says. "This legislation sets the framework for one landown- er to hold another landowner for ransom" and, he adds, "could have the effect of sterilizing the property develop- ment rights." The Forestry Act can in some circumstances render properties undevelopable where construction or other work may affect the roots or branches of a commonly owned boundary tree. And, in its current form, the act ap- pears to work at cross purposes to the provincial govern- ment's intensification efforts and the municipality's inter- est in rejuvenating the existing housing stock, says Lantz. "From a public policy perspective, this legislation needs to be revisited and possibly amended to remove the concept of common ownership of boundary trees," says Lantz. "To do otherwise will result in what is called the tragedy of the commons where no one has the incentive to manage the resource — in this case the commonly owned boundary tree." LT Trees that sit on property boundaries can create difficult legal issues. 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