Casual Legal: Trees can cause legal headaches!

By Andrew Skeith
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider 

Mature trees often improve the scenery, but their branches and roots can cause headaches for landowners and municipalities when they encroach onto neighbours’ properties.

Encroaching branches can cause a mess when they drop their leaves, fruit, or pinecones into neighbouring yards. They can also obstruct sightlines and even damage neighbours’ property if they break off during a storm.

Tree roots that extend beyond property lines can cause significant damage to adjacent lawns, sidewalks, driveways and foundations. They can also damage underground sewer and water lines, and electrical and fibre-optic cables.

Municipalities are often asked to intervene – either to trim offending branches or roots, or to issue tickets for bylaw infractions to the trees’ owners. In most cases, responsibility to act and remove the branch or to commence a lawsuit against their neighbour for damage caused by the encroaching branches or roots lies with the landowner.

The landowner upon whose property the branches or roots are encroaching is able to engage in “self-help” and to cut the branch or roots themselves. However, the landowner does not have the right to go onto their neighbour’s property to prune the tree or shrub in question, as doing so grants the neighbour an action in trespass. There are a number of Alberta cases where neighbours have been held liable for the cost to replace a tree damaged when they trespassed onto a neighbouring property and improperly pruned or damaged an existing tree.

If a landowner does decide to remove the branches themselves, they must do so in a careful manner that does not damage the health of the tree. For this reason, it is recommended the landowner retains a qualified arborist to perform the work, and ensures the arborist does not enter onto their neighbour’s property to do so.

Municipalities can only intervene where their bylaws allow them to do so, or where the tree poses an imminent danger to public safety. In all other cases, responsibility to deal with the encroaching branches and roots rests with the private landowner.

To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or send an casuallegal [at] (email) to reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or send an riskcontrol [at] (email )to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.