A B.C. court just sent a loud message to anyone who's ever eyeballed a neighbour's tree

Bob Aaron is a Toronto real estate lawyer and a contributing columnist for the Star. He is also a member of the Home Construction Regulatory Authority Consumer Advisory Council. He can be reached at bob@aaron.ca A British Columbia homeowner has learned the hard way that lopping off a neighbour's trees without permission can be a costly mistake. Jacalyn Hays and five members of the Fenton family own adjacent cottage properties in Sicamous, B.C., overlooking Shuswap Lake. In July 2021, Alan Fenton asked Hays for permission to trim or top her trees to improve his view of the lake. Hays claimed she gave him limited approval to trim just small saplings provided they were no more than three inches in diameter and six or seven feet in height. The problem was that the parties had very different ideas about exactly what had been authorized. Unfortunately some much larger trees were cut and topped, and one 50-foot tree was completely felled. That turned a neighbourhood tree-trimming exercise into a lawsuit for trespass. Judge George Leven of the B.C. Provincial Court issued his decision last month, following hearings in May. As is so often the case in property disputes, the problem was not simply what somebody said. It was proving what had actually been said. Hays told the court that her property had once been a 'shaded oasis' and was now 'unbearable' since it was exposed to direct sunlight for much of the day. Fortunately for Hays, she had recorded an important conversation in which Fenton admitted, 'I have to take responsibility.' The judge used the recording to conclude that Hays had not consented to the cutting of the larger trees. The defendants, including the unlicensed and uninsured tree cutter, were held liable in trespass. The judge noted that the defendants had ample opportunity to phone or email Hays to confirm exactly what could be cut. Instead, the defendants proceeded without obtaining first-hand confirmation. All of the defendants were found liable. The next question was damages. For Hays, the loss of the trees meant loss of shade. She sought compensation for expenses resulting from her losses, including replacement trees, installation of a shade structure, new air conditioning, professional reports and a shelter for a propane tank. The judge considered what expenses reasonably flowed from the trespass and tried to arrive at an award that was fair to both sides, but he refused to award the full cost of replacing the trees themselves. The damages, however, did not end with out-of-pocket expenses. The court also recognized something homeowners instinctively understand: trees can be part of the enjoyment of a property. Their removal can affect privacy, appearance, shade and comfort. Hays complained about the increased heat caused by the lost shade, the appearance of the property and concern over the stability of the slope where the trees had stood. The judge awarded $35,000 damages as compensation for the trees and diminished enjoyment of the property. That amount is the maximum permitted monetary jurisdiction of the provincial court. Although this was a British Columbia decision and does not bind Ontario courts, the warning for Toronto homeowners is clear. Never assume that because a neighbour has said go ahead and 'trim the trees,' everyone agrees on what those words mean. Is permission being given to remove one branch? To prune everything extending over the property line? To reduce the height of a tree? Or to cut it down? Those are all very different things. In Ontario, the issue can be even more complicated when a tree trunk grows on the boundary between two properties. Under Ontario law, every tree whose trunk grows on the boundary between adjoining properties is the common property of the two owners. Injuring or destroying a boundary tree without both owners' consent is an offence. Toronto has another layer of protection. Under the city's tree bylaw, trees on private property with a diameter of 30 centimetres (12 inches) or more are generally protected against injury or removal without a permit. The city also cautions homeowners dealing with a neighbour's overhanging branches that they cannot trespass onto the neighbour's property to remove them, and cannot damage the neighbour's tree. The practical lesson from Hays is simple. If neighbours agree that tree work can be done, put the agreement in writing. Identify the tree. Take photographs. Mark the branches that can be removed. Specify whether the work involves pruning, topping or removal. And make sure an arborist sees the written agreement before the chainsaw starts. A five-minute email or call between neighbours could have prevented the B.C. litigation. Trees can survive for a century. Unfortunately, a neighbour's oral permission may have a much shorter life expectancy. Opinion articles are based on the author's interpretations and judgments of facts, data and events. More details