The massive ice storm that recently devastated the Toronto area felled whole trees and large branches. This damage to the urban canopy knocked out electrical service to hundreds of thousands of people and caused untold property damage.
With the post-storm clean-up now underway and expected to last several weeks, condominium managers may need guidance dealing with trees that fell from neighbouring properties onto condominium common elements.
Ownership of a tree is usually clear-cut – trees belong to whoever owns the land on which the tree is situated. If, however, a tree’s trunk is growing on the boundary between adjoining lands, section 10(2) of the Forestry Act provides that the tree is the common property of both owners. But what is a trunk? Luckily, the Ontario Court of Appeal released a decision just a week before the ice storm clarifying that, for the purpose of the Forestry Act, the “trunk” is “that part of the tree from its point of growth away from its roots up to where it branches out to limbs and foliage.”
For trees that are common property, either owner can cut the branches on their side of the property line, but they cannot injure or destroy the tree without the consent of the adjoining land owner. Where the branches of a tree belonging to one party extend onto a neighbour’s land, the neighbour can trim the branches that stretch onto his or her property but cannot injure or destroy the tree.
Normally, trees grown within 15 feet of the road belong to the city. Landowners or condominium managers should contact the city or hydro department about city-owned trees on or near their property that may cause damage to hydro wires or pose a risk to the public.
If a tree or tree limb has fallen onto condo common elements from neighbouring properties, condominiums can always report the damage to their insurer or choose to make the repairs themselves and sue their neighbours later for the cost of repairing the damages. Generally, any claim for damages from a fallen tree should first be reported to the condominium’s insurer, particularly if the cost of repair is significantly more than the insurance deductible, in which case the cost can be recovered from the condominium’s insurer, which eliminates the need to sue neighbours or the city. However, condominiums may choose not to make an insurance claim where the estimated cost of repairs is less than the insurance deductible, in which case they may perform the repair themselves and then seek damages from the neighbour or the city, depending on who owns the tree.
In order to make a good claim against a neighbour for damages from a fallen tree, one must prove that the neighbour was negligent. That is, the condominium must show that the neighbour knew or should have known that the tree was in danger of falling and causing damage but failed to take corrective steps. For example, if a tree is diseased or rotted and this is visible to a person viewing or inspecting the tree, it is likely a court would find the neighbour liable for damages since as the owner should have known that the tree posed a risk of falling. If the tree looked normal and healthy, it would be difficult to recover damages from the tree owner because it was not clear that the tree posed a risk.
Where the fallen tree belongs to the city, it becomes more difficult to succeed with a claim since a plaintiff must show that the city was grossly negligent. If, for instance it could be proven that the city wholly disregarded and failed to respond or investigate a reported tree that could pose a risk to persons or property, the city could potentially be held responsible. By any stretch, this will not usually be an easy burden to meet.
The issue of removing fallen trees or limbs is entirely separate from the issue of damage caused. A tree’s owner is responsible for the cost of removing any fallen tree or tree limbs from a neighbouring property. The common law is clear that fallen trees and limbs constitute a continuing nuisance and must be removed. Condominium managers facing such a situation should provide reasonable written notice to the neighbour requesting removal from their common elements of a tree or limb that fell from a neighbour’s land. If the neighbour fails to remove the tree or limb, condominiums may do so themselves and seek repayment of the costs in the Small Claims Court. Conversely, trees or limbs of trees belonging to condominium corporations that fall onto neighbouring lands should probably be removed by (or removed at the cost of) the condominium corporation.
As a preventative measure, trees that pose a visible threat to the condominium’s property or persons on the property should be brought to the attention of the tree owner as soon as possible. Not surprisingly, where a condominium corporation owns the tree, it has a duty to properly maintain the tree to prevent damage to property or harm to persons. This makes even more sense if well-maintained trees tend to better withstand ice storms.