[CANUFNET] Municipal tree ownership/responsibility

Thu Dec 22 14:45:05 EST 2011

Hello all
It seems like stating the obvious but I would strongly recommend f you do not already have it beside your desk that anyone involved in managing trees on public land should consider purchasing a copy of “Arboriculture and the Law in Canada” by Dunster and Murray. ISBN 1-881-956-19-9

Here at the District boundary trees are a constant source of enquiry from the public and to ensure that we are providing sound advice we have developed a Q & A series based on the legal precedents cited in this book.  For obvious reasons as public servants the wording we choose to answer these queries is very carefully chosen, including phrases such as “must not trespass”,
“have a duty of care” to the other owner
“Trimming must not damage or create structural instability”
And so on

Meanwhile
When our municipality is involved with the management of a shared tree we first obtain written consent from or notify the other owner, in addition we obtain a signed permission to enter onto their property.
We will always pursue shared costs of tree management however if it is an obvious public safety issue “threatening public property” as the senior agency and trained professionals we will always assume the cost of risk management.
We reserve the right to then suit the other owner if their action made the tree unstable, these are usually settled out of court for obvious reasons

We have used the contents of this book to provide guidance for the development of our policy and procedures

Good luck with your endeavours and happy holidays to all

Mark Brown, RPF Cert. Arb.
Community Forester
District of North Vancouver

From: canufnet-bounces at list.web.net [mailto:canufnet-bounces at list.web.net] On Behalf Of Philip van Wassenaer
Sent: Wednesday December 21, 2011 9:00 AM
To: 'Stephen Smith'; 'Canadian Urban Forest Network'
Subject: Re: [CANUFNET] Municipal tree ownership/responsibility

What is that partial answer? To me the Forestry Act could only help for a removal of a boundary tree…how do we define injury and if we can, how do we define the loss to one owner when the other owner commits the offending act? They both have rights to the tree.

Based on Alex’s comments our research and discussion we have had with Dianne Saxe, the act is rarely enforced and if it is, compensation never seems to amount to much. What we need is precedent setting case somewhere that recognizes that “trees have standing” and upholds the rights of a tree owner to not have their property destroyed by something that only benefits their neighbour….

Maybe you can explain a little more Stephen how you have used the act in practice, or the partial answer.

Cheers,

Philip van Wassenaer, B.SC., MFC
1248 Minnewaska Trail
Mississauga, Ontario
Canada, L5G 3S5
Tel:  (905) 274-1022
Cell: (647) 221 3046
Fax: (905) 274 2170
[UFI new logo very small]

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

From: canufnet-bounces at list.web.net [mailto:canufnet-bounces at list.web.net] On Behalf Of Stephen Smith
Sent: Tuesday, 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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