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Litigation waged over dispute on overhanging tree

Right of usage established under common law
|Written By Shannon Kari
Litigation waged over dispute on overhanging tree
Benjamin Kates says that a recent decision shows that courts are not going to penalize people for being good neighbours.

A homeowner who does not object to a neighbour regularly accessing a strip of his or her property should not normally lose any legal rights over that land, an Ontario Superior Court judge has ruled.

Justice Paul Perell made the finding in a legal dispute between two neighbours in the Scarborough section of Toronto over access to a passageway between their houses and also whether a portion of an overhanging oak tree could be pruned without seeking permission.

The decision in Carpenter v. Doull-MacDonald is another example in recent years of a dispute between neighbours that ends up in litigation, a fact that is noted by Perell in his ruling.

The “animosity” was “consistent with the norms of neighbours who are not neighbourly,” he wrote in the decision released Dec. 19.

Benjamin Kates, a civil litigator at Stockwoods LLP in Toronto, who has acted for clients in a number of boundary disputes, says that, even though the issues may seem minor to outsiders, it is not surprising they end up in court.

“It is important to remember that we are often dealing with the core asset of the litigants, which is of great importance to them,” says Kates.

The case before Perell involved the owners of homes originally purchased in the late 1940s by two Second World War veterans.

Cynthia Doull-MacDonald bought her home in 2015 from the original owner. Carol Carpenter became the registered owner of the house next door, after the death of her father in 2010.

The narrow passageway between the two houses is land that is owned by Doull‑MacDonald.

The court heard that the original owner did not object to Carpenter’s father and his family accessing that strip of land over the years, usually just to clean windows or the eavestroughs.

Several months after purchasing her home, Doull­MacDonald had a fence erected inside her property line, about 35 centimetres from her neighbour’s house.

In response, Carpenter filed an application in court seeking an order that the fence be taken down on the grounds that her father had obtained a prescriptive easement through his past use of the land and that the right had not been extinguished.

A legal right of usage over property can be established under the common law if there has been more than two decades of access, Perell explained.

“The doctrine of lost modern grant establishes that where there has been 20 years of uninterrupted enjoyment of an easement and such enjoyment has all the necessary qualities to fulfill the requirements of the prescription, the law will adopt the legal fiction that such a grant was made,” wrote Perell.

However, courts should be cautious about finding that a landowner’s legal interests have been diminished as a result of being a good neighbour, said Perell.

He cited a 2013 decision by the Ontario Court of Appeal in 1043 Bloor Inc. v. 1714104 Ontario Inc., which also involved a dispute over the usage of land between two properties.

Perell found that no prescriptive easement had been established because the original owner was acting in a “neighbourly way” to permit access to his property.

“The evidence suggests permission to use not acquiescence to taking,” the judge wrote.

In outlining the various property law issues that must be considered, Kates suggests that Perell ultimately attempted to determine the most reasonable outcome.

“The fundamental message of this decision is that courts are not going to penalize you for being a good neighbour,” says Kates.

Les O’Connor, senior litigation partner at WeirFoulds LLP in Toronto, says that one way to ensure there is no ambiguity for a homeowner is to make it clear that it is only with your permission that the neighbour is being allowed to access the land.

“You can’t in the face of permission turn that into a legal right,” says O’Connor.

Doull-MacDonald was also permitted to prune the overhanging branches without seeking permission from her neighbour, ruled Perell.

Both sides retained an arborist to testify and the judge concluded that the pruning did not damage the tree.

The legal right comes from the common law, notes O’Connor.

“It is a nuisance on your property. You didn’t ask for the branches to overhang,” he says.

As long as a tree is not a “boundary tree” under the provincial Forestry Act, you are entitled to prune branches that are on your property, says Kates.

“If it is a boundary tree, that is where it gets tricky. You want to look at your deed and your survey and you want a reputable arborist” to avoid potential legal problems, he explains.

Sarah Corman, the lawyer acting for Doull-MacDonald, and Robert Kalanda, the lawyer representing Carpenter, both declined to comment as the case is still in the appeal period.

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