Tree Trespass Is No Leafing Matter
If a tree is straddling a property line between two neighbours’ yards, who owns it? What is the recourse if one neighbour wants to cut it down and the other doesn’t?
This may seem like a silly legal question at first, but between feuding neighbors with differing degrees of arboreal affection, what to do with a tree that straddles a property line can be a contentious issue.
For example, let’s say neighbour Jack wants to cut this tree down to make room for a fence, or perhaps to open up his view of the lake, whereas neighbour Jill would prefer for the tree to stay standing because it provides shade over her porch in the hot summer.
For the sake of proper terminology, a “border tree” is one that has its trunk solely in on property, while its branches or roots extend on to an adjacent property.
I’ll offer two scenarios, one where the “border tree” is on Jill’s property but branches over Jacks, and a second where the tree straddles the property line on both properties.
Although I’ll go out on a limb and recommend that Jack should first use a more diplomatic approach, the law holds that a property owner is legally entitled to cut any parts of a tree that extend onto their property.
This is not to say that Jack can now go chopping down trees, branches or roots without any consideration…
As the BC Court of Appeal said in Anderson v Skender (1993),
“‘[B]order trees’ … do not trespass. It is those who cut them who may in so doing trespass on the land, or ‘air space’, of their neighbours. Insofar as branches … extend across the boundary line into a neighbour's property, that neighbour may … have a remedy in nuisance, and this may … include a right to ‘self-help’, but it will not generally include a right to enter the other's property nor to cut any part of the tree which is on the other's side of the property line.”
If Jack wishes to enthusiastically take advantage of his “right to cut that which is on his property,” he should be aware that upon cutting an extra inch back onto Jill’s property, she can bring claim against his invasion onto her right of property.
In the BC Case Ford v Zelman (2005) the defendant chopped off a part of a tree that was dropping leaves onto his property, despite being rooted in his neighbor’s yard. The trimming was perhaps better described as a mutilation, and the tree died. The court found that the cuts were clearly made past the property line of the neighbor, thus the cutting constituted a trespass into the airspace of the neighbor’s property.
Now for the second scenario, where the tree’s trunk is ½ on Jack’s property and ½ on Jill’s property. Does this mean that Jack has the right to cut down half of the tree?
The court in Anderson v Skender (1993) put aside that notion, putting into law what in my mind is the common sense approach:
“Plainly such trees cannot be felled by one landholder without the consent of the other landholder for they cannot be cut at ground level without the cut being at least in part on the other's property. So far as the right of either to cut branches, roots or leaning stems wholly over or under their own land is concerned, that cannot, in my view, be affected by the fact that the trunk is partly on each side of the line, rather than being wholly on the other side”.
So, in this scenario, Jack retains his right to cut down the branches that are extending on to his own property; however, to cut the trunk straight through would necessarily require an encroachment onto Jill’s property, and thus can’t be done without her consent.
It is worth noting also that it is possible to obtain a mandatory injunction to have a tree removed as well.
What if Jack removes intrusive roots from his property, but it results in killing the entire tree?
What if the damage was accidental (i.e. not removing roots, etc)?
What if the tree damages Jack’s property (roots heave driveway, or a branch crashes through the roof), is Jill liable for this damage?
Like most legal issues, tree trespass can become much more nuanced with every additional factor that comes into play. The bottom line: if you are faced with a similar disagreement with your neighbour, it's best to consult a lawyer before grabbing those shears.