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. Please feel free to send questions and I will respond if I can. (Please note that I am not a lawyer and cannot provide legal advice.)
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?
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?
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?
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?
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 first 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?
Usually the fine print on a MUNICIPAL permit to remove a tree states that the permit-applicant is responsible for all “CIVIL and COMMON LAW” issues. Boundary trees are regulated under civil and common law. This means that the permit-holder is responsible for consulting with co-owners (even if they have a municipal permit). Many permit holders interpret their municipal tree-removal permit to mean that the City is giving them permission to go ahead and cut down a boundary tree, 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?
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.
Please feel free to send questions and I will respond if I can. Please note that I am not a lawyer and cannot provide legal advice.