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You Won’t Be-Leaf This Case!

Boundary line disputes are common in the realm of Real Estate law and the case of Allen v. MacDougall, 2019 is no exception.

The parties shared something in common, a tree that straddled the boundary line of their adjoining lands. The Forestry Act states “every tree whose trunk is growing on the boundary between adjoining lands is common property of the owners of the adjoining lands.”The Applicants sought to cut the tree down as part of their home renovation and expansion plan and Respondents objected to cutting down the tree.

The Applicants obtained the requisite permits from the Committee of Adjustments, the Toronto Building Department and Toronto Urban Forestry Department. They relied on the law of nuisance and argued that “the tree deprives them of access to their property in the sense that the “tree protection zone” curtails the amount of land on which they can build.”

The Court acknowledged a variety of cases where nuisance was claimed. The Court acknowledged a Supreme Court of Canada case which recognized “at common law, an owner would clearly have a right to claim for nuisance against roots, branches etc., growing on his land from a tree located on his neighbour’s land,” and the Applicants argued that this principle should not change because the tree is located on the boundary line between adjoining lands.

In this case, the shared tree had not done damage to the Applicants land. The Respondents argued that the tree pre-dated the Applicants purchase of the said lands and it had not been a “nuisance” until they decided they wanted to renovate. Therefore, the tree was not interfering with the current use and enjoyment of their property rather it was preventing the Applicants “desire to increase their property value.”

To the Respondents re-leaf, the court ruled in their favour and the tree remains today.

If have questions regarding boundary line disputes, contact our Elizabeth Street office in Midland, Ontario by phone at 705-526-3791 for a quote or speak directly to one of our lawyers.

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