Common Property
Toronto Star column, November 23, 2013
Common Property
“We say we love flowers, yet we pluck them. We say we love trees, yet we cut them down. And people still wonder why some are afraid when told they are loved.” ~Author Unknown
The first home that I owned was a lonely thing. It stood in a field in north east Toronto on Kennedy Road in the community of Milliken. It was surrounded by fields of unkempt grass and light industrial buildings with a back drop of the CN rail line on which freight trains frequently rumbled through, rattling the china in the cabinet several times a day. We were devoid of neighbours, at least, the kind that lean over the back fence and talk about the weather and end conversations with, “Have a nice day.”
You can imagine the joy that we felt when we made the decision to move into a community of residents complete with neighbours. There were people to greet and be greeted by, people with kids and eyes to watch ours when we were distracted. We were lucky enough to make good friends with some of our neighbours, people that we left our house key with while we were on vacation. It was the kind of experience that advertising copy writers for residential developments in this section of the newspaper go to great pains to describe.
The downside of having neighbours is that we have to get along where issues of mutual interest are concerned. When our interests diverge, there can be trouble.
Such was the case for Hilary Cunningham Scharper and husband Stephen Scharper. They live in Toronto on a quiet street. Humewood Drive. In 2012 their neighbour decided that she wanted to cut down a large, mature maple tree in her backyard. As it turned out portions of the tree’s canopy, roots and trunk grew across the property line shared with Hilary and Stephen.
The trees ‘owner’ obtained a permit to cut the tree down, based on an evaluation prepared by an uncertified arborist who was also hired to cut the tree down.
The Scharpers hired an expert, certified arborist who established that the tree was healthy, but in need of ‘cabling’ for permanent support, which the Scharpers offered to pay for while objecting to the cutting down of the tree. The neighbour who wanted the tree cut down sued the Scharpers, who hired Clayton Rudy to defend them and their right to have a say in the removal of the tree.
The Scharpers won their case based on the Ontario Forestry Act [section 2] which protects trees whose trunks grow across property lines. This is the first time that the Forestry Act has been applied in an urban context.
The neighbour has appealed the decision.
This situation raises important issues for anyone who lives with mature trees, especially in an urban setting where the roots and canopy of the trees are shared with other property owners. This ruling clarifies some issues that relate to tree ownership and the rights to have them removed, or not. Here are some common questions regarding the issues:
- Can one homeowner arbitrarily cut down a tree whose trunk is growing across a property line?
No – not without the neighbour’s explicit consent. It is now a criminal act to injure or cut down a tree whose trunk grows across a property line. Consequences include a fine of up to $20,000 and jail time [!]
- What if the majority of the trunk grows on one neighbour’s property? Doesn’t this mean that it is his or her tree?
No. Even if the majority of the tree grows on one side, it is still a shared tree and therefore common property. It is not a percentage game. Even if the tree’s trunk grows only a few centimeters on the neighbour’s property, it is shared between the two neighbours.
- Legally – what is the ‘trunk’ of a tree?
It is defined as everything from where the base of the tree meets the roots [the root flare] to where the tree sends out its first branches. The tree ‘base’ can be below the ground. If any portion of this tree trunk crosses the property boundary, the tree is common property and cannot be injured or removed without co-consent.
If the trunk crosses the property line at any point between the root flare and where it branches, it is common property and therefore protected by the Ontario Forestry Act.
- My neighbour has obtained a tree removal permit. Does this mean that they have the right to cut it down in the case of a boundary-tree?
No. The City of Toronto does not require co-consent between neighbours before issuing a permit to destroy a tree. The fine print on the permit states that the permit applicant is responsible for all “civil and common law” issues. In other words, the permit does not confer sole property rights to the permit-holder. Clearly the permit holder is required to confer and obtain permission to cut down the tree from the neighbour.
- What are the consequences of cutting a tree down illegally in Toronto?
A person convicted of an offence under City of Toronto Municipal Code Chapter 813, Article III is subject to a minimum fine of $500 and a maximum fine of $100,000; a special supplementary fine of $100,000 is also possible.
- If a tree is cut down without a permit, how does one place a complaint?
Within Toronto city limits, you may dial 311. Outside city limits, please use the following number: 416-392-CITY (2489).
- How is the complaint followed up on?
Forestry staff has been designated the authority to enter private property if they suspect that trees are being cut down or harmed illegally and to issue a stop work order under the provisions of the City of Toronto Act.
While this is a ‘Toronto’ story, I note that the lawyer for the defendant used the Ontario Forestry Act as grounds for his argument that co-approval must be obtained before a tree is removed. This suggests that this is not strictly a Toronto issue but one that may be defended using the Act province-wide.
Sadly, the issue has not yet been resolved. While the parties await a date for the appeal hearing, legal costs are mounting on the part of the Scharpers. The outcome of the appeal decision [assuming that it is heard and goes to trial] could influence the fate of thousands of mature trees in our urban areas. Some of those trees, you can be sure, will be historic or ‘heritage’ trees that should be celebrated and preserved, not cut down.
If you wish to support the Scharpers in their fight, you can contact them at hilary.scharper@gmail.com.
If you wish to learn more, go to a website that the Scharpers have set up to inform on the issues at www.boundarytrees.com. The ‘slogan’ of the site is ‘Committed to the welfare of urban trees’. I believe that it is a valuable resource for protecting our urban tree canopy.
Question of the Week
Q/ I want to buy an amaryllis for my mother for Christmas. Are they easy to grow? And what do I look for when shopping?
A/ Amaryllis are very easy to grow. Look for the largest bulb available to ensure it will bloom. Many kits include a pot and the soil. Simply ‘plant’ the base of the bulb in moist soil, place in a bright window and wait. When the plant blooms, take a photo to enter my annual contest on my website.
