A new case from the Ontario Superior Court has ruled that the costs associated with pruning and maintaining trees growing on property lines should be shared between owners of neighbouring properties, and municipalities must take this principle into account in issuing maintenance orders against homeowners.
In Laciak v. Toronto (City), 2014 CarswellOnt 2369, Himel J. set aside an order issued by the City of Toronto when it was only issued against the property owner on whose property the majority of the tree was growing.
The City had received a complaint about a large Carolina Poplar in a residential backyard in Toronto’s High Park neighbourhood. The arborist who attended the property found that approximately 30% of the tree was dead or decaying, and that it posed a potential hazard. As a result, a property standards officer issued a maintenance order under the Building Code Act.
The property owner complained that she should not be solely responsible for the cost of maintenance since the tree’s roots were on two neighbouring properties, in addition to her own.
The property standards officer responded by issuing orders against the two abutting property owners as well. However, these two owners successfully appealed their orders to the City’s Property Standards Committee. The appellant’s order, however, was confirmed by the Committee, and she appealed to the Superior Court.
Interestingly, in this case, at the time the arborist inspected the tree, it was entirely within the fenced-in area of the appellant’s backyard. However, at some point throughout the dispute over who should pay to have the tree pruned, a survey was conducted and three new fences were built on all three properties which now intersect with the tree.
Himel J., following last year’s Ontario Court of Appeal decision in Hartley v. Cunningham, held that trees with trunks growing across property lines are common property, and that the relevant part of the trunk is where the tree meets the roots. As a result, she set aside the order against the appellant requiring her to have the tree pruned, concluding:
[22] On the evidence before me, I am satisfied that the tree may be commonly owned by the three properties abutting and that the order of compliance requiring the cost of all the maintenance of the tree to be borne by one homeowner must be set aside in these circumstances. It will be for the City to take whatever steps it deems necessary to address the issue of repair of the tree with all the owners, having considered the current state of the tree, the advice of the arborist, whether or not any portions of the maintenance required can be attributed to a particular owner because of where the branches overhang and the recognition of the fencing that now exists surrounding the tree. Evidence of the position of the owners of the abutting properties about the maintenance of the tree should be before the Committee.