Don’t go barking up the wrong tree – unless you’ve first obtained a court order to do so. The matter in this week’s blog post involves a Toronto homeowner who wanted to remove a shared maple tree in order to build an addition onto their house and discovered, almost immediately, that their neighbours were not on side with their plans. The homeowner who wanted the tree removed wisely chose to take the matter to court in hopes of obtaining an order granting them the right to remove the tree, rather than exercising a self-help remedy that could have led to them being charged criminally and facing a civil suit by their neighbours.
It is not uncommon for neighbours to have disputes over shared property, and as this case demonstrates, it is extremely important for homeowners to seek legal advice before taking matters into their own hands. The matter to be reviewed below emphasizes the responsibilities of both homeowners when faced with a property dispute and why consulting a lawyer is essential to prevent ensuing legal conflicts.
The case of Allan v. MacDougall, 2019 ONSC 1939 represents a familiar case (for some unfortunate homeowners) involving neighbours fighting over their rights to shared property. It is often a driveway in Toronto, but in this case it happened to be an old maple tree. In this instance, the Allans (the “Applicants”) proposed a plan to renovate their home, which involved adding an extension onto the back of their house in order to build more bedrooms for their growing family. Unfortunately, the plan to build an addition onto the house was restricted by a shared maple tree that straddled both the Applicants’ property and the property of their adjacent neighbour. The Tree had to be removed in order to build the extension. They had acquired the necessary municipal permits but they were still unable to move forward without the consent and cooperation of the co-owners of the tree.
The MacDougalls (the “Respondents”) owned the property adjacent to the Applicants’ property and are the co-owners of the shared maple tree and do not want to see the tree removed. The Respondents objected to the tree being removed, and believed that the tree provided a range of environmental, economic and social benefits for the Respondents (and the Applicants) as well as the overall neighbourhood. Moreover, the Respondents consulted an expert arborist who confirmed the range of benefits that the tree is providing, and confirmed that the tree was in good and healthy condition.
Justice Morgan found that the Respondents may be stubborn, much to the Applicant’s chagrin, but, “there are occasions when one is entitled to be stubborn.”
This appeared to be one of those cases.
The Applicants’ position was straightforward. They had exhausted all efforts to have the tree removed, and were seeking the assistance of the court to resolve the dispute. They had acquired all relevant municipal permits to cut down the tree, and their reasoning for having the tree removed, according to the city was valid. The only thing standing in their way was the reluctance of the neighbour to allow the tree’s removal. The Applicants argued that the Respondents’ stubbornness was simply an expression of their lack of empathy for their difficult circumstance.
Although the Respondents may have been acting stubbornly, their right to defend the tree was strengthened by property law. The municipal permits did not reflect any adjudication of property rights, including those rights of the co-owners of the tree. As previously mentioned, the Respondents consulted an expert arborist who established that the tree appeared to be in good condition and was providing both of the co-owners with a range of economic, social, and environmental benefits. As stubborn as their position may be, it was clear the shared maple tree possessed considerable value for the Respondents, at least.
One caveat in the law of property, however, is embodied in the legal doctrine of nuisance, which states that if the current use of the property by one owner causes a nuisance to the neighbouring property, the property owner suffering damage by that nuisance may be in a position to interfere with that use.
The Applicants argued that the tree constituted a nuisance as its presence was interfering with the unfettered use of their land and their ability to build the extension for the enjoyment and use of their growing family.
The court was not persuaded by this argument and held that there was no nuisance where one had, in effect, come to the nuisance. In this case, the maple tree was there before the Applicants moved in 18 years ago. Since that time, the shared maple tree had not caused any harm to any structure currently built on the Applicants’ land and had only become a nuisance to them once they had decided to add an addition to their home. It was clear to the court that the maple tree was not interfering with the Applicants’ current access or enjoyment of their property, rather it was only interfering with a planned enhancement of the land. For the nuisance to be an interference, it must impact the ordinary comfort, or obstruct the property owner’s current use and/or enjoyment of their property.
Additionally, in order to arrive at the conclusion that the tree must be removed, the Applicant must demonstrate that there was no reasonable alternative. The shared tree only disrupted the proposed building plan, and the Applicant must explore other options to effectively demonstrate that their renovations cannot be fulfilled unless the tree is taken down. However, the Applicants proposed no alternative design nor, more importantly, provided evidence why no alternatives would work; therefore, it was not entirely certain that the Applicants’ proposed design was the only possible building plan.
Justice Morgan ultimately dismissed the application.
Upon encountering a dispute with your neighbour over the shared property, it is always important to ensure that all necessary legal requirements are considered. In this instance, the Applicants wisely chose to consult with a legal professional instead of pursuing self-remedy options (even though they had acquired necessary municipal permits).
Unfortunately, the Applicants were unable to provide the court with enough evidence to solidify their contention that the removal of the tree was the only option available to them when proceeding with their desired renovations.
In the event that you are faced with a property dispute, or if you have any concerns regarding a neighbour’s questionable behaviour, please don’t hesitate to speak to one of our lawyers to ensure that your interests are properly understood and protected.
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