The tree’s trunk grew across the property line with my neighbor and as such it was a shared tree (i.e., shared property). My neighbor did not agree. She hired a lawyer and took my husband and myself to court in an attempt to get a Judge to rule that she was sole owner of the tree so that she could cut it down.
While we tried desperately to avoid an expensive court case, we felt terrible that someone would want to cut down a mature, healthy tree with a glorious, 16m canopy. We had certified arborists come to inspect the tree and after they confirmed that the tree was healthy and viable, they told us that thousands of shared trees like ours get cut down every summer (often to make way for larger homes or development projects). After hearing this news, we realized that we couldn’t just throw in the towel (even though our legal fees were skyrocketing into tens of thousands of dollars). As a result, we went into deep personal debt to try to get some clear legal protection for these kinds of trees.
Arborists Jack Radecki and Philip van Wassenaer were expert witnesses for us, and lawyers Clayton Ruby and Nader Hasan successfully defended our rights to the tree. In a 2013 precedent-setting case, Justice Moore ruled that the tree was healthy and viable and that as co-owners, we had rights to enjoy and preserve our property. Even better, the ruling established a holistic definition of a tree’s trunk—something that makes it harder to cut shared trees down. The Ontario Court of Appeal upheld the ruling a year later.
Two years later my husband and I are still paying off our legal debts—but we have no regrets about taking that first important step toward the legal defense of shared trees. Just recently, in a second case, our ruling was put to use. On April 24, 2015 an Ontario Justice of the Peace convicted a Toronto homeowner for willfully cutting down a large and valuable boundary tree without his neighbor's permission. Under the Forestry Act provisions (that were affirmed in our case), the convicted man faces a fine of up to $20,000, a 3-month term in jail, or both. (The penalty hearing will take place on Friday July 24, 2015.) The man and his contractor are also facing a civil suit for monetary damages.
These are all hopeful signs for the urban forest. They also represent the “growing pains” of a society trying to forge new and more sustaining relationships with forms of nature that often take a backseat to development. Because this was such an unpleasant and costly experience for us, I also decided that I would do my best to help other people avoid these kinds of conflicts. As a result, I created a website:
‘Boundary Trees and Shared Trees"
The website provides information on boundary trees as well as helpful information on how homeowner’s can determine if they have shared trees growing on their property. The site also provides a link to the 4-page legal ruling, background information on the Hartley vs. Cunningham/Scharper case, as well as links to newspaper coverage of the case.
Now that the rules are clear, I think we can all take a step forward and take better care of our precious and beautiful urban trees—including those we share across property lines.
Hilary (Cunningham) Scharper is a novelist and associate professor of cultural anthropology at the University of Toronto. Scharper’s fiction, academic writing, teaching and research focus on cultural approaches to Nature.