FAQs on Boundary Trees

SIX SIMPLE THINGS you should know about boundary trees (also known as shared trees). The answers are based on the Ontario Forestry Act and the Ontario Superior Court 2013 Ruling (upheld by the Ontario Court of Appeal 2015).
Photos of boundary trees are available here and can also help you discern whether or not your tree might be a boundary tree.

QUESTION 1: My neighbour claims that s/he can automatically cut down a tree growing across the property line without my consent. Is this true?
Image fillAnswer: NO (Ontario).
A tree with its trunk growing across a property line is considered shared-property and in normal circumstances should not be injured or destroyed without the neighbor’s consent. The trunk is a key factor in such a case. It can be a serious offence to injure or cut down a tree whose trunk grows across a property line. In Ontario, consequences include a fine of up to $20,000 and 3-months jail time or BOTH.

QUESTION 2: What if the majority of the trunk grows on one neighbor’s property? Doesn’t this automatically mean that it is his or her tree?
Image fillAnswer: NO (Ontario).
Even if the majority of the tree’s trunk grows on one side, it is still a shared tree and therefore common property. In other words, it is not a percentage game. Even if the tree’s trunk grows only a few cm or inches on one side, it is still a shared tree.

QUESTION 3: What is the trunk of a tree?
Image fillAnswer:
The trunk of a tree includes everything from where the base of the tree meets the roots (the root collar) to where the tree sends out its first branches (leaders). So the trunk includes everything from the base/root collar (sometimes this is located below the ground) up to where the tree begins to branch. If any portion of this trunk crosses the property boundary, the tree is common property.

QUESTION 4: My neighbor claims that the base of the tree at ground level is completely on his/her side and that therefore the tree belongs to him/her. Is this true?
Image fillAnswer:  NO (Ontario).
Using the definition above, the Ontario Superior Court ruled that if any portion of the trunk crosses the boundary line, it is a co-owned tree. The trunks of trees are irregular, so sometimes a trunk will not cross a property line at ground level, but may nevertheless cross the property line below ground (at the root collar) or further up. If the trunk of the tree crosses the property line at ANY point between the root collar and where it branches, it is common property, and therefore protected by the Ontario Forestry Act. The ruling established that there is no ONE arbitrary point on the trunk of a tree where it must cross a property line—anywhere along the trunk is sufficient.

QUESTION 5: My neighbor claims that if the City of Toronto gives a homeowner a permit to remove or injure a tree, this means the permit-holder can automatically cut it down—even in the case of boundary trees. Is this true?
Image fillAnswer:   NO (Ontario).
The City of Toronto, for example, does not require co-consent between neighbors BEFORE issuing a permit to destroy a boundary tree. Instead, the fine print on the permit states that the permit applicant is responsible for all “civil and common law” issues. This means that the permit-holder is responsible for consulting with co-owners before going ahead with either injuring or destroying a boundary tree. Many permit holders interpret their tree-removal permit to mean that the City is giving them permission to just go ahead and do what they want, but this is incorrect. After the 2013 Ruling, the City of Toronto changed its procedures for boundary trees and now notifies (in writing) all co-owners of the application for a tree-removal permit.

QUESTION 6: Why doesn’t the City of Toronto require co-consent between neighbors of boundary trees BEFORE issuing a permit to destroy or injure a boundary tree?
Image fillAnswer:
This would certainly help to make things less confusing, but unfortunately prior co-consent for boundary trees is not the case in Toronto—at least, not at present. In 1997, the City of Toronto required the PRIOR co-consent of homeowners before issuing a tree removal permit in cases involving boundary trees. In 1998, however, developers lobbied City Council to have this removed from Toronto’s Tree Protection By-laws claiming that it impeded development. They were successful, and the prior consent clause was removed.
The Hartley vs Cunningham/Scharper Ruling, however, did result in some positive changes to both Toronto’s Private Tree By-Laws as well as Urban Forestry procedures for issuing permits. See here.

 

 

 

 

 

 

18 Comments on “FAQs on Boundary Trees

  1. Thank you for your blog. Very informative we have an infill application in Guelph Ontario on Mont Street that would involve the cutting of boundary trees. |I have informed the neighbours of the Ontario Superior court ruling hopefully they will be able to save these trees. Thank you laura

  2. Question: I have a boundary tree. The trunk lies 90% on my property. I understand the law states that I am not allowed to cut down or injure the tree without the consent of my neighbour. However, am I allowed to prune the tree branches on my side or screw a bracket into the trunk for a fence support. Is this considered injuring it?
    Thank you

  3. It is my understanding that in the case of a boundary tree, you can prune tree branches that extend across your property line, as long as the pruning does not injure the tree. (Always a good idea to coordinate pruning with the co-owners if possible.) Screwing in a bracket for fence support can seriously injure a tree. My suggestion would be to consult with a certified arborist and discuss this with the co-owners.
    Thanks for your interest in this site!

  4. A developer is going to the Committee of Adjustment May 4, 2017 to ask to take down 18 Ravine protected trees and saplings and injure 9 other Ravine protected trees and take out most of the 107 cedar fence. He is trying to build 2 houses in the backyard of corner lot. Toronto City Planning has no objection! Urban forestry has objected. The cedar fence is mutual and his development will also impact my Ravine protected old oak trees. Help!

  5. We have a neighbour that owns a private road where we have a legal deeded access then we have a tree line for privacy which has
    Been there for almost 40 years .Can that neighbour cut away at the trees ? some are on our property line and some are on the right way., Help!

  6. It sounds like you will need to have clarity on which tree trunks cross your property line. In Ontario, if the trunks of the trees cross the property line, then they are boundary trees and are protected as co-owned property through the Ontario Forestry Act. If any of the trees in your case crosses the property line, then they are shared/boundary trees and you are a co-owner. As a result, your neighbour needs your permission/consent to injury or cut down any co-owned trees. (You would have to ask a lawyer about the right-of-way property–that’s a very interesting situation! Depending on where you live, there may also be by-laws protecting private trees from being felled. Your neighbour would have to follow these rules if s/he wishes to cut down trees on his/her private property.)

    You may wish communicate info on the boundary trees to your neighbour and indicate that you consider yourself a co-owner. It might also help to point your neighbour to the info on this website. It is best if this is done in writing and sent requesting a signature. Doing some of these things proactively will help you establish your co-ownership rights at the outset. You can also call or send a letter (cc:ing neighbour) to your local police indicating that you have some boundary trees and are concerned about your property rights being respected and protected.
    In the meantime, you can also have a line-survey done confirming exactly which tree trunks cross the property line (if haven’t already done so). You can also have your boundary trees “valued” by an arborist so that you can indicate damages if they are injured or harmed by our neighbour.

    Hope this helps!

  7. Thank you! My neighbour has done a survey on the property line it shows that some of the trees are clearly on our property which our neighbour has not only trimmed across our property line but tried to destroy the trees. Other trees show inches of the trunk are on the property line some are well over the property line. Along this property line we have legal deeded access on the private road . Can you tell us if the neighbour can still trim or remove any of these trees. Also what is the difference between boundary trees and border trees?

  8. I am happy to answer your questions and share my opinion–but please note that I am not a lawyer.
    If a proper survey shows that any portion of the trunk of a tree crosses a property line, then the tree is considered a “shared tree” or a “boundary tree.” Note that this applies to the trunks of trees (not canopies or roots)–so it is important to understand that it is the legal trunk of a tree that must cross the property line. Boundary trees in Ontario are governed by the Ontario Forestry Act. This Act stipulates that they are co-owned trees (co-owned between property owners) and provides that their destruction or injury requires the co-consent of both owners.
    You indicate above that you are one of the property owners (i.e., an owner of one of the properties where the trunks actually cross the property line), so that would make you a co-owner of those specific trees. According to the Act, therefore, your neighbour is required to seek your consent to destroy those trees. (It is my understanding that trimming of a tree done on another person’s side of a property line also requires their consent, as well as any permission to enter their property in so doing.)

    There have been an increasing number of cases in Ontario involving boundary trees, and it’s probably best to consult with a lawyer about the specifics of your situation (including the issue of deeded access), and perhaps send notification to your neighbour of your co-ownership in the trees. This might help prevent any further destruction of—or injury to—the trees.

    “Boundary trees” are trees that fit the legal definition above…”border trees” are trees that grow along the border or near the edge of a property line. Border trees may or may not have trunks that cross over into an adjacent property—so they may or may not be “boundary trees.” Anyone who wants to cut down a tree near the edge of their property, however, needs to be very careful that they are not removing a boundary tree—i.e., co-owned property.

    Hope this helps!

  9. Thank you for your reply. The question regarding the canopy of a boundary tree that is co- owned , is there anylaw on how high one can trim or cut branches of a boundary tree. Your help is very much appreciated on this matter.

  10. We have a boundary tree that has toppled over and damaged the fence (due to the uprooting) and the neighbours car. I would like to know what is the liability -is the damage shared or can one argue that the damage from the neighbours branch on the neighbours property is borne by the neighbour? The law is confusing as it only talks about pruning or removal of trees, not damages.

  11. To my knowledge, there are no such laws/restrictions regarding this, but it would be a good question to raise with urban forestry… it is my understanding, however, that property rights extend into airspace, so that the pruning of any branches involving a human presence on your side of the property requires your consent. So in other words, an arborist who wants to trim the tree’s branches accessing your side of the property line (including both your ground and airspace) requires your consent to do so.

  12. Our new neighbour has just trimmed two about 15-year-old apple trees that grow on our side (trunks growing almost 1 m and 1/2 m, from the property line, on our lawn so not really a boundary tree). While I understand trimming small branches extending to his side, he had trespassed to our side and trimmed all around the trees stating that it was just “an act of good neighbour” to give it “nice shape”.

    Now the trees have no flowers, thus no apples on the lower branches and I could not reach the top of the tree for apples anyway. I expressed my unhappiness on him trespassing and altering the trees on our side. I will not have chance to make apple juice this year at least. For sure he is not an arborist, so I wonder if the pruning was even done in a safe way. He said that he will in fact next cut off all the thick limbs and all canopy that extend at all cross the property line – stating that he KNOWS IT WILL HARM OR KILL THE TREES. He prefers the trees to be gone. That would be about 1/3 of the canopy and make the trees totally lopsided. Adding the trimming that he did already, that would be removing more than 1/3 of the total canopy.

    He says it is a safety risk to have fruit trees because they attract wasps, fallen apples destroy his lawn, and branches might have hit his daughter’s face when he lifted her up when walking on his driveway. He says we have to stop apples falling on his property altogether or clear them up for him. To me fallen apples, just like fallen leaves, are just like part of nature. I could not possibly stop apples falling on his side, and should not be expected to rake his lawn either. He thinks he cannot be expected to rake apples on his side because the tree is not his.

    He purchased the house knowing these trees had been there for long with the agreement of us and the previous owner (planted on our side by the previous owner actually, so not really our choice, but we were happy). Last summer we had a look at the property lines together with the new neighbours, so they certainly were aware that the trees are on our side.

    I understand trimming branches that would extend to his driveway, and trimming of some small branches that extend to cover his lawn area, but find that cutting off limbs of the tree would risk serious damage to the tree. The trees might become unstable and become an actual safety hazard. The trees have been healthy, with no limbs that would look like posing any risk of falling.

    We are in Oakville, but this appears to be mostly a civil matter. One tree is 16 cm diameter but branches off below 137 cm, other is just 12 cm diameter. Our neighbour thinks that he could in fact just cut down the trees and replace with other types of trees and no-one would care, because bylaws don’t apply to smaller trees like these. Hard to understand that a neighbour would be this unreasonable simply because he dislikes fruit trees. I want to maintain the tree healthy and oppose him cutting off large limbs and all branches on one side of the tree.

  13. Dear Lin,

    I am so sorry to hear about this situation! I always let people know that I am not a lawyer, but I am happy to share some thoughts.

    It sounds like these are NOT boundary trees, but trees growing entirely on your side of the property line. It’s important, however, to establish that the trunks are wholly on your side, following the definition of a tree’s trunk on this website.

    Based on what you indicate above, it seems that your neighbour has trespassed onto your private property to trim the trees. This is a legal issue in addition to the issue of trimming your trees. Trespass is serious and it is something that you might alert the police to—even if only to file a complaint and consult with them about how to prevent it from happening again.

    Your neighbour sounds like he is acting out of frustration—we all do this sometimes!—but we all still need to obey the law. You can ask the police to speak with your neighbour. You may wish to file trespass charges, but having the police talk to your neighbour may at least prevent a recurrence. In addition, you can share with the police some of the past history and your concerns that your neighbour will trim the trees in such a way as to make them hazardous.

    To my knowledge, your neighbour can trim the branches that extend across into his yard, but he cannot do this in such a way as to injure or kill your trees. If he does so, and your trees die, then he is liable for property damage. (If your neighbour is not an arborist and cuts off large boughs, then he is quite likely to injure the trees.) If he “trims” with the intention of killing the trees—you say he has threatened to do this—then this seems to me much more serious. It would be good to let the police know that he has explicitly indicated he wants to kill the trees, and also get witnesses to any future statements of this kind. I suggest that you take photos of the trees before any more damage is done.

    Oakville does have tree protection by-laws, but permits to cut down trees would be issued to the owners of the trees—not to a neighbour who doesn’t like someone else’s trees.

    One last thought—it sounds like your neighbour is very unhappy about the fallen apples and has different lawn aesthetics. Some people have successfully used nets/tarps to collect falling fruit. These are inexpensive and relatively easy to install and also prevent insect infestations (i.e., wasps).

    Hope this helps! Best, Hilary

  14. Hi There, thank you for your answers and it has help me a great deal. We did hire an arborist to confirm boundary trees and our own trees. All have been trimmed away and roots hack at its very the clear the intent to injure the trees! How can we stop this person from doing anymore harm? Thank you

  15. Hi Mike,

    One thing you can do is: “officially” inform your neighbour of your co-ownership in the trees–if you haven’t already done so. This can be done in the form sending of a letter requiring a signature. In some cases, co-owners have had a lawyer write and send the letter. You could also include information about the Ontario Forestry Act as well as the address of this website—both outline the potential consequences if the co-owned trees are injured or destroyed.

    A second suggestion is that you also send/cc: the letter to your local police as well as to your City Councillor.

    This lets your neighbour know that 1) there are legal parameters involved regarding what they can and cannot do to the shared trees; and 2) you are aware AND being vigilant of your co-ownership (i.e., property rights) in the boundary trees.

    Good luck!

    Hilary

  16. Hi Hilary,
    We have a boundary-shared tree in our back yard which is 3 feet diameter and is tilted to our neighbors’ side. In case this tree happened to fall, although it doesn’t seem likely since it seems to have grown that way, who is liable for damages that may occur?
    Ps. We live in Mississauga.
    Thank you.

  17. In most cases tree damage falls under your home insurance policy. So best to check with your insurance company to see what your coverage is. There have been cases of co-owners threatening to hold their neighbors repsonsible for damages if a boundary tree falls down…but (as in our case), there has to be sufficient cause to remove a tree. If a tree is healthy and viable, it shouldn’t be removed. If you or your neighbor are concerned about safety and property damage, then I suggest having an arborist come and evaluate the tree.
    There’s an interesting/helpful article on this issue here: https://www.thestar.com/business/personal_finance/2014/01/31/if_your_neighbours_tree_falls_in_your_yard_who_pays.html

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