[CANUFNET] Municipal tree ownership/responsibility

Fri Dec 23 11:31:43 EST 2011

Hi Alex and Philip,

Here in Quebec we apply the civil code, which does not allow any work to be
carried out on a joint owned tree without the consent of the other owner.
Work without consent is considered an infraction and is subject to legal
action (if one chooses to take this path). This applies to aerial as well
as underground tree parts.

>From a municipal perspective let’s say a joint owned tree falls on car. A
surveyor will determine the % ownership of the tree and each owner is
responsible for that % of the claim for the damages.

The means taken by the Quebec government cleared up the notion of managing
co-ownership and has its advantages in terms of ‘protecting trees’ but it
leaves the door open for other ambiguities.

Happy holidays

Gregg Staniforth

City of Montreal

On Fri, Dec 23, 2011 at 9:04 AM, Philip van Wassenaer <
pwassenaer1022 at rogers.com> wrote:

> My thoughts exactly. That is what we have been hearing when talking to
> municipal lawyers about this.****
>
> ** **
>
> Peter have you had a discussion with Richmond Hill legal minds about this?
> ****
>
> ** **
>
> ** **
>
> *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****
>
> [image: UFI new logo very small]****
>
> ** **
>
> www.urbanforestinnovations.com****
>
> ** **
>
> ** **
>
> ** **
>
> ** **
>
> *From:* canufnet-bounces at list.web.net [mailto:
> canufnet-bounces at list.web.net] *On Behalf Of *Julian Dunster
> *Sent:* Thursday, December 22, 2011 12:04 PM
>
> *To:* Canadian Urban Forest Network
> *Subject:* Re: [CANUFNET] Municipal tree ownership/responsibility****
>
> ** **
>
> It will depend upon whether or not the provincial legislation supercedes
> municipal bylaws, and whether or not the Act applies to municipal / private
> land. It may be a mistake to assume that the Provincial act does not apply
> until you know for sure. Even if it seems ridiculous, a judge might find
> s/he had no option but to accept it in some situations.
>
> ****
>
> 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 22/12/2011 8:33 AM, pwynnyczuk at richmondhill.ca wrote: ****
>
> It seems we are using to 2 different Acts to address the same issue,
> Forestry Act and Municipal Act
> The question posed was related to co-ownership between the Municipality
>  and the Private Land Owner.
>
> As municipalities are empowered to create Bylaws under the Municipal Act,
>  typically this is the route chosen for tree issues.
>
> I'm not clear on how many urban municipalities would use the Forestry Act
> to base any tree bylaws on at this point.
>
> Therefore the appropriate wording in the Bylaw, under the Municipal Act,
>  along with a policy and agreement program sounds like the way to go for
> co-Municipal/ Private tree ownership.  Reality being, until it is tested in
> Court, its only a guideline in my understanding.
>
> In light of the emerging  EAB nightmare, this will become more critical
> for all parties involved as the municipality has a tendency to have greater
> risk for users of the roadway if tree failure at or near the street line
> occurs.
> Therefore, where there are close or shared trees someone will have to
> decide on the significant costs/risks and who is responsible for action.
>
> I went off  topic but still very relevant......
>
> Regards,
> Peter Wynnyczuk
>
> Urban Forestry Supervisor
> Town of Richmond Hill
> Community Services Department
> Telephone:  905 780-2930
> Fax:  905 780-2928
> Internet: pwynnyczuk at richmondhill.ca
>
>
>
>
> From:        "Philip van Wassenaer" <pwassenaer1022 at rogers.com><pwassenaer1022 at rogers.com>
> To:        "'Stephen Smith'" <Stephen at ufora.ca> <Stephen at ufora.ca>,
> "'Canadian Urban Forest Network'" <canufnet at list.web.net><canufnet at list.web.net>
> Date:        12/22/2011 10:52 AM
> Subject:        Re: [CANUFNET] Municipal tree ownership/responsibility
> Sent by:        canufnet-bounces at list.web.net ****
> ------------------------------
>
>
>
>
> 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
> [image: UFI new logo very small]
>
> www.urbanforestinnovations.com
>
>
>
>
> *From:* canufnet-bounces at list.web.net [
> mailto:canufnet-bounces at list.web.net <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 <a.satel at utoronto.ca>
> *Sent:* Tuesday, December 20, 2011 10:48 AM
> *To:* 'Canadian Urban Forest Network' <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
> http://www.urbanforestinnovations.com
> [image: UFI new logo very small]
>
>
>
>
> *From:* canufnet-bounces at list.web.net [
> mailto:canufnet-bounces at list.web.net <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 <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
> http://www.urbanforestinnovations.com
> [image: UFI new logo very small]
>   ****
>
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