[CANUFNET] Municipal tree ownership/responsibility

Wed Dec 21 09:55:42 EST 2011

I think that may appear to be the situation as the law is written, but according to this interesting write-up by Dianne Saxe, a local environmental lawyer, this hasn’t been the case in many court decisions:

An excerpt:

A number of cases have dealt with the ownership of border trees, and with the damage done to them by neighbours. As mentioned above, almost all decisions permit a neighbour to trim or cut offending branches or roots, as long as he/she does not trespass, even if this harms or kills the tree. Occasionally, the courts suggest that this right is not absolute, and does not permit injury imposed “needlessly” to the tree. But even if trees are illegally damaged or destroyed, the compensation awarded has been inadequate.

Theoretically, some laws are supposed to protect trees. For example, Ontario’s Forestry Act makes trees whose trunks straddle property boundaries common property of both landowners. That ought to mean that both owners are entitled to protect the tree from damage. As well, some municipal by-laws (e.g., Toronto’s) impose restrictions on damage to trees of a certain size. But neither is actually effective in practice.

In principle, anyone who injures or destroys a tree growing on the boundary between adjoining lands without the consent of the land owners commits an offence under the Forestry Act and is liable to a fine of up to $20,000 and/or to imprisonment for up to six months. But, as far as we can tell, this section has never been enforced. There is also a risk that the courts will interpret this, as they did some older laws, to mean that either owner can consent to the destruction of a boundary tree. That would destroy the point of the section, and leave boundary trees with no real protection at all.

http://envirolaw.com/protect-trees/ 

-Alex

Alex Satel, MFC
ISA Certified Arborist ON-1353A

Urban Forest Innovations Inc.

1248 Minnewaska Trail
Mississauga, ON  L5G 3S5

T: (905) 274-1022

C: (416) 452-8054

 <mailto:asatel at ufis.ca> asatel at ufis.ca

 <http://www.urbanforestinnovations.com/> http://www.urbanforestinnovations.com

UFI new logo very small

From: canufnet-bounces at list.web.net [mailto:canufnet-bounces at list.web.net] On Behalf Of Stephen Smith
Sent: December 20, 2011 6:41 PM
To: Canadian Urban Forest Network
Subject: Re: [CANUFNET] Municipal tree ownership/responsibility

But it does provide a partial answer to what to do when one owner wants to butcher a tree along a property line because he doesn’t want anything overhanging his property and the other one wants to keep the tree healthy.

Stephen Smith
Urban Forest Associates Inc.
Urban Forestry and Ecological Restoration
www.ufora.ca

From: Alex Satel <mailto:a.satel at utoronto.ca>  

Sent: Tuesday, December 20, 2011 10:48 AM

To: 'Canadian Urban Forest Network' <mailto:canufnet at list.web.net>  

Subject: Re: [CANUFNET] Municipal tree ownership/responsibility

Terry,

Thanks for pointing this out, as it poses an interesting challenge to how communities might define ‘ownership’ of trees. 

Clearly this isn’t a legal analysis (as I’m not a lawyer), but it seems to me that none of the by-law or policy definitions of tree ownership, as defined by municipalities, are actually framed under this legislation, and this appears to be the only law in Ontario that actually addresses how tree ownership should be determined. The disconnect seems to be that a municipality can’t actually claim ‘ownership’ over a tree if any part of it is on a boundary line; by definition these trees are ‘common property’ and I would think that both owners have equal rights to the tree. In practice, I can only see this becoming an issue if the tree is scheduled for removal by municipal crews without the co-owner’s consent. I suppose this is why the City of Toronto and others request sign-off before they undertake maintenance on shared trees.

An interesting issue, to be sure.

Thanks again to everyone for their responses. Keep ‘em coming!

And thanks to Andy for his continual work moderating this list. 

-Alex

Alex Satel, MFC
ISA Certified Arborist ON-1353A

Urban Forest Innovations Inc.

1248 Minnewaska Trail
Mississauga, ON  L5G 3S5

T: (905) 274-1022

C: (416) 452-8054

 <mailto:asatel at ufis.ca> asatel at ufis.ca

 <http://www.urbanforestinnovations.com/> http://www.urbanforestinnovations.com

UFI new logo very small

From: canufnet-bounces at list.web.net [mailto:canufnet-bounces at list.web.net] On Behalf Of Schwan, Terry (MNR)
Sent: December 20, 2011 8:53 AM
To: Canadian Urban Forest Network
Subject: Re: [CANUFNET] Municipal tree ownership/responsibility

Alex

In Ontario you should consider Section 10 of the Forestry Act. 

Boundary trees

10. <http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90f26_f.htm#s10s1>  <http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90f26_f.htm#s10s1>   (1)  An owner of land may, with the consent of the owner of adjoining land, plant trees on the boundary between the two lands. 1998, c. 18, Sched. I, s. 21.

Trees common property

(2) <http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90f26_f.htm#s10s2>   Every tree whose trunk is growing on the boundary between adjoining lands is the common property of the owners of the adjoining lands. 1998, c. 18, Sched. I, s. 21.

Offence

(3) <http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90f26_f.htm#s10s3>   Every person who injures or destroys a tree growing on the boundary between adjoining lands without the consent of the land owners is guilty of an offence under this Act. 1998, c. 18, Sched. I, s. 21.

Terry

Terry Schwan, R.P.F., M. Sc.

District Forester

Guelph District

Ministry of Natural Resources

One Stone Road West

Guelph, Ontario

N1G 4Y2

Phone: 519-826-4933

Fax:   519-826-4929

Email:  terry.schwan at ontario.ca

  _____  

From: canufnet-bounces at list.web.net [mailto:canufnet-bounces at list.web.net] On Behalf Of Alex Satel
Sent: December 14, 2011 2:16 PM
To: 'Canufnet'
Subject: [CANUFNET] Municipal tree ownership/responsibility

Hello all,

I am interested to know how your community determines tree ownership and assigns responsibility for maintenance, particularly with regard to street trees. 

Many communities operate on the principle that if 50% or more of the stem is on public property, the tree is a City asset and a municipal responsibility. Does your community work differently? If so, do you maintain street trees if less than 50% of the stem is on municipal land, or if only if the tree is wholly on City property? Has your community at any point transitioned from one approach to another, and if so, did that significantly change the workload for your forestry crews?

Any insights into this issue would be greatly appreciated. Thanks for your consideration, and best wishes for the holidays.

--Alex

Alex Satel, MFC
ISA Certified Arborist ON-1353A

Urban Forest Innovations Inc.

1248 Minnewaska Trail
Mississauga, ON  L5G 3S5

T: (905) 274-1022

C: (416) 452-8054

 <mailto:asatel at ufis.ca> asatel at ufis.ca

 <http://www.urbanforestinnovations.com/> http://www.urbanforestinnovations.com

UFI new logo very small

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