Who owns the tree
When you have a disagreement with your neighbour about a tree, what you can do partly depends on who owns the tree. And that depends on where the tree is relative to the property line (also known as the “boundary line”).
Basically, if the trunk and visible roots are wholly on your neighbour’s property, your neighbour owns the tree. But if some of the base is on the property line, you and your neighbour jointly own the tree.
The property line
So where’s the property line? There might be a fence or hedge or some other physical barrier between the two yards. But, these may not be legally accurate markers of the property line.
To be certain of where your property line is, take a look at your land survey. You might have received one when you bought your home. A land survey will show the location of your property line. It may also show where markers, such as pins, have been placed in the ground to help identify the property line.
If you don’t have a land survey, you should consult a land surveyor and have a land survey done. It’ll help you figure out where, literally, to draw the line between your and your neighbour’s properties.
You can search the BC land title authority to see if a land survey is part of the public record for a property. You can also hire a registered BC land surveyor to come to the property and identify the property line. The cost of a land survey may range from about $500 to $800. The actual cost will depend on the property size, location, history, and other factors.
A border tree versus a boundary tree
If the trunk and any visible roots of your neighbour’s tree are close to, but not over, the property line, this is a border tree. Your neighbour owns and is responsible for maintaining it, including any branches that hang over onto your property.
If part of a tree trunk or part of any visible roots are growing across the property line, then it’s a boundary tree. Both you and your neighbour jointly own it and are responsible for maintaining it. Each of you has to get the other’s agreement before doing anything to the tree.
Image by Julian Dunster via Tree Service Canada
What your municipality’s tree laws say
Many cities and towns have rules in place to protect trees and regulate tree cutting. These rules are typically in local bylaws. When you and your neighbour have a disagreement about a tree, what you can do depends on who owns the tree, as well as what your local tree bylaws say.
For example, many BC municipalities require property owners to apply for a tree removal permit if they want to cut down a tree above a certain size. The threshold is typically a tree trunk diameter of 10 to 20 cm or larger, as measured at 1.4 m above the ground. Take a look at this diagram from the City of Vancouver website.
Image from City of Vancouver
Often, a tree removal permit will require a property owner to plant one or two “replacement” trees for every tree that’s cut down. Municipal bylaws will often set out the number, size, and type of replacement trees, as well as where on the property they can be planted.
If you want to prune or remove a tree, check with your municipality about the laws that apply to you. Call 3-1-1, contact your local municipality directly, or check your local municipality’s website.
On CivicInfo BC, you can search across local government websites province-wide to find local bylaws relating to trees in your community. In the search box, type in “tree bylaw [community name].”
Where to plant a tree in your yard
Trees beautify and benefit the environment. They also give your home shade and privacy. But before you buy and plant one, there are some things to consider. These include the type of tree and where to plant it.
Type of tree
Some municipalities have rules about the types of trees you’re allowed to plant on your property. For example, if you got a tree removal permit and have to plant a replacement tree, your municipality may have a list of tree types you can choose from. Some types of trees may not be allowed because they grow too big or they’re considered invasive. (This means they don’t occur naturally in BC, and can end up causing ecological damage and costing a lot of money to deal with.)
Where to plant
Check your municipality’s local bylaws in case there are rules about where you can plant a tree in your yard. Even if there aren’t any, there are general guidelines you should follow. For example, don’t plant trees close to overhead utility lines. This can pose a safety hazard. Also, FortisBC recommends you “click, call or check before you dig”: contact BC 1 Call to find out if there are any buried utility pipes or lines. (This service is free.)
Some people like to plant trees near or on the property line for privacy. But leaves or fruit falling from overhanging branches might interfere with your neighbour’s use and enjoyment of their property. These boundary trees may also throw unwanted shade on your neighbour’s yard.
There may be bylaws where you live about where you can plant a tree in your yard. Even if there aren’t any, ask yourself: “What would a good neighbour do?” They’d probably plant the tree a reasonable distance from the property line. How far may depend, in part, on the tree’s eventual height and diameter. A short, narrow tree could be closer to the property line than a tall or broad one.
If there are overreaching tree branches or roots
Overreaching branches and roots can be annoying and inconvenient. This might be especially true if:
- leaves, fruit, nuts or other debris fall from your neighbour’s tree onto your property
- tree roots are a tripping hazard or cause damage to your yard, the foundation of your home, or part of your property (like a driveway)
In law, these situations may be considered a nuisance. This means they amount to an unreasonable interference with your right to use and enjoy your property.
What you can do depends in part on who owns the tree and any local bylaws relating to trees.
If you jointly own the tree
If the tree is a jointly owned boundary tree, you and your neighbour have to agree on what is to be done with it. You can talk about who will do the work and how the costs will be covered. Once you work out the details, you can put them in a letter to your neighbour.
If your neighbour owns the tree: the self-help rule
If your neighbour owns the tree, you can ask them to prune the tree’s branches or dig up its roots. You can ask that they (at their cost) hire a professional arborist to do the work, but they don’t have to; they can choose to do it themselves. You can also confirm with them that they will clean up any debris that is left.
If your neighbour is unco-operative, or if you’d rather do it yourself, you can choose to cut back your neighbour’s overhanging branches or dig up the roots — up to the property line — and clean up the debris left on your property. You don’t need to get your neighbour’s permission (but you can give them a friendly heads-up if you like). This is called the self-help rule. But in using it, you:
- can’t enter your neighbour’s property without permission
- can only prune or cut back the branches or roots that are on your property
- shouldn’t cause any unnecessary damage to the tree
If you cut the branches or dig up roots past your property line, you’re trespassing. In that situation, if the tree is damaged or it dies, you may face:
- a fine for breaking a local bylaw (if there is one),
- legal action by your neighbour, or
- both of the above.
Take a look at this diagram showing an example of how the self-help rule works:
Image by Julian Dunster via Slaw, from Trees and the Law in Canada
If a tree falls and damages your property
If a tree on your neighbour’s property falls and damages your property, your neighbour isn’t responsible for the damage unless it was caused intentionally or through negligence.
Negligence means your neighbour didn’t take reasonable care in the circumstances. Or they were warned or knew the tree was damaged or diseased and might fall, but still failed to investigate or take steps to deal with the hazard. In this type of situation, your neighbour (or their insurance company) could have to pay for the cost of the damage.
If your municipality is your “neighbour”
Your municipality is responsible for inspecting and maintaining trees on public property. But because there are so many trees in public spaces, municipalities often rely on reports from the public to take action.
There might be a tree on public property next to your property that poses a hazard or is causing damage. Or there may be an unhealthy tree across from your home that’s part of a community street plan. You can contact your municipality and ask them to inspect and maintain these trees that line boulevards.
Generally, you can’t prune or cut trees on public property without your municipality’s permission. If you do, you’ll be breaking local bylaws. You may have to pay a fine or face a legal action.
If you’ve contacted the municipality to report an unhealthy tree and it isn’t inspected and maintained, the municipality can be responsible for paying for the cost of damages to your property.
BC law says a municipality won’t be responsible for paying damages in a legal action unless you’ve provided written notice about the legal problem within 60 days. You also have to start a court action within six months of the property damage occurring. Otherwise you’re out of time to sue the municipality.