by Thomas Mueller and Erika Burbidge
Are you considering removing a bothersome or messy tree from the edge of your property this Spring? Or has your neighbour expressed frustration at the overhanging branches or encroaching roots from a tree on your property? Disputes between neighbours about rights and obligations with respect of trees are common. These disputes frequently revolve around the removal or alteration of trees that are either growing directly on the property line or those which are located on one property and encroaching onto the other.
Prune With Permission: Understanding Property Rights
Boundary trees are those which straddle a property line. In contrast, border trees are located on one of the properties concerned, but their roots or branches extend into the adjoining property. Keep in mind the following points when dealing with the foregoing classification of trees:
- In deciding whether to prune or trim a border tree on your property, it is crucial to remember that only the portion of the tree that falls within your property line may be altered. Entering onto a neighbour’s land to alter a tree without the owner’s consent is trespass.
- In most circumstances, you, as a property owner, are entitled to cut the roots or branches of a border tree which extend onto your property as a ‘self-help’ remedy. However, you must not trespass to achieve the desired result and, indeed, may only alter the roots or branches extending onto your own property.
- Boundary trees are owned by neighbouring property owners as ‘tenants in common’. This means the value of the trees are also shared. If you damage a boundary tree, your neighbour may seek compensation from you.
- Ensure that the trees growing on your property, especially those near to the property line, are well maintained. If a large branch from a tree on your property falls into your neighbours’ yard and it was reasonably foreseeable that the branch would fall, you could be liable for damages in nuisance if you failed to take any steps to remedy the threat.
Failing to consider potential legal implications when dealing with boundary or border trees can quickly escalate into a neighbour dispute with serious legal consequences. For instance, if a property owner removes or significantly damages a boundary tree without the co-owner’s consent, they may be liable for the diminution in value of the tree, and potentially for aggravated or punitive damages if the act is found to be deliberate or in bad faith. Similarly, excessive pruning or root cutting of a border tree that causes the tree’s decline or death could lead to a claim in nuisance or trespass, particularly if the actions taken were unreasonable or caused foreseeable harm.
Nuisance, Trespass, and Other Tree Trouble
Neighbour disputes over trees frequently give rise to claims of nuisance, especially where branches or roots encroach upon the neighbouring land and cause damage to structures, paving, or landscaping. While self-help remedies are often permitted in limited circumstances, property owners must be cautious in exercising them. Overstepping boundaries—literally or figuratively—can create legal exposure and damage relationships between neighbours. Moreover, municipalities may have bylaws that govern tree preservation or removal, particularly in urban settings, and violations can result in fines or orders for remediation.
These disputes may also involve complex evidentiary questions, such as establishing the precise location of the property line, the age and value of the tree, and whether the harm caused was foreseeable. It is not uncommon for experts such as arborists or land surveyors to be retained during the process. Courts tend to favor reasonable behavior and cooperation between neighbours, and judges may frown upon unilateral actions that disregard shared rights or obligations.
In some cases, boundary tree disputes may also trigger insurance issues if damage is caused by falling limbs or root intrusion.
However, coverage can be denied if the property owner knew of a hazard and failed to act. This adds another layer of complexity and underscores the importance of proactively managing tree-related risks near property lines.
In conclusion, it is crucial to exercise care and conduct the proper inquiries into property lines and tree ownership prior to altering trees near or on a property line. It is also important to have the foresight as a property owner to ensure that trees located on your property do not pose a risk to the properties which surround your own. Keep the foregoing points in mind and you will be well on your way.
Baker Newby LLP provides a full broad range of Civil Litigation legal services including assisting with the variety of legal issues discussed in this article. Baker Newby – Your team for dispute resolution. Your team for success.
