In the world of real estate, trees and all of their glory can often be a significant consideration to not only the development potential of a property but also the continuing use and enjoyment of another’s property.

In previous posts, we have written about boundary trees growing on the property line and the often contentious battles that can result between neighbouring property owners as a result of responsibility for – and decisions relating to – such trees. In a recent decision of the Ontario Superior Court of Justice,[1] the Court heard a case involving a boundary tree that was severely damaged during the 2013 ice storm and which caused damage to the roof of one of the property owner’s homes. To briefly summarize, one neighbour wanted the tree removed, while the other neighbour wanted to keep the tree in place. A battle of the independently retained arborists hired by each of the property owners ensued and ultimately, the City of Toronto granted authority to have the tree removed due to its poor condition.

In the end, the Court held that there is no conflict between the Forestry Act[2] (which deals with boundary trees) and Chapter 813-16 of the Toronto Municipal Code[3] (which deals with the granting of tree removal by the City of Toronto Urban Forestry Department). Rather, the Court stated that this was a “straight-forward application of the common law of nuisance”[4], with the result being that the tree must be removed.

The Court held that despite the provisions of the Forestry Act, the owners remain liable to one another in accordance with the common law of nuisance on the basis of the presumption that the legislation preserves rather than changes the common law. Importantly, the Court went on to refer to case law that states that the “law of nuisance imposes responsibility on a landowner for the natural state or conditions of his or her property if the owner is aware or ought to have been aware that the state of the property is a nuisance to neighbours”[5] and that “nuisance is a common law tort, and it is a form of strict liability that is not concerned with fault or misconduct.”[6]

The Court also held that as a matter of law, owners of private trees are required to take steps to abate the nuisance, including the trimming of tree branches or roots that could interfere with another land owner’s use and enjoyment of their property.