[CANUFNET] Municipal tree ownership/responsibility

Wed Dec 21 10:43:42 EST 2011

What this tells you is that there is an ongoing tension between two 
conflicting areas of law. One the one hand.  it is legal to trim back 
branches and roots to the property line. On the other hand, if the tree 
straddles the boundary line, in theory each landowner is supposed to be 
involved in any decisions affecting the tree. Perhaps one of the reasons 
that the courts have not awarded more realistic damages is that the 
testifying experts have not always presented a rational case supporting 
the claims made. Soome claims I have seen are hyper inflated, probably 
as a means of giving the client a high starting point for negotiation. 
That is not a part of appraisals, but by adopting that approach, the 
courts may well sense the claim is invalid. Or, it could still be that 
the Courts simply do not believe trees have that much value, especially 
in more rural areas where ecosystem benefits are less readily quantified.

In all cases, if a municipality is involved in joint ownership issues, 
it would, in my opinion, be extrememely wise to have a) a written 
policy, publicly available (and legally defensible) that states how such 
trees will be managed, and b) a written process outlining how the other 
affected party will be contacted when management work is needed on 
municipal lands.

Some of these issues are covered in the book/Arboriculture and the Law 
in Canada/.

On Behalf of Dunster and Associates Environmental Consultants Ltd.

Dr. Julian A Dunster R.P.F., M.C.I.P., ISA Certified Arborist,
ASCA Registered Consulting Arborist # 378,
PNWISA Certified Tree Risk Assessor # 1.

www.dunster.ca

On 21/12/2011 6:55 AM, Alex Satel wrote:
>
> 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
>
> asatel at ufis.ca <mailto: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
>
> asatel at ufis.ca <mailto: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>*  
> (1) 
> <http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90f26_f.htm#s10s1>  
> 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
>
> asatel at ufis.ca <mailto:asatel at ufis.ca>
>
> http://www.urbanforestinnovations.com 
> <http://www.urbanforestinnovations.com/>
>
> UFI new logo very small
>
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