Shade on you!


SHUTTERSTOCK PHOTO Copyright ETIENjones

Q. My neighbor’s tree roots are maybe damaging my pool wall plus there’s shading I don’t want. Can he be forced to correct these problems?

A. Invasive roots, loss of view, shading, leaves falling, wayward branches… its a living drama on land without borders. A stage play where trees are the protagonists. Co-ownership of a tree may add turmoil. So will cutting down a majestic one. The scenarios are endless.

Plus money does not grow on trees and while they may help property values, damages can be costly. Especially structural damages caused by roots.

The law is pretty concise on shading and roots. To understand fully lets single out, as main actor, the most important word in the following Civil Code paragraph:

985 - If branches or roots extend over or upon an owner's land from the neighboring land and seriously obstruct its use, the owner may request his neighbor to cut them and, if he refuses, compel him to do so.

Before elaborating on the important word let’s introduce the legal moral character of our stage play. Meet Section 976 the wise elder who encourages tolerance of normal neighborly inconveniences. Supporting actors take the form of neighbors who have legitimate claims or may hide deep-rooted issues fuelling power struggles. Sometimes the tree is not the real problem but in your case there may be real damage so it’s not just picking a fight.

Getting back now to that important word in the paragraph above. The word was added in 1991 to deter frivolous lawsuits. ‘Seriously.’ Seriously, that’s the word. Complaints must be based on a serious problem. In that light, let’s now examine legalities on shading and roots separately.

Shading: Generally, courts don’t consider shading on a stand-alone basis as something that is serious enough to warrant a remedy, echoing s. 976 that says neighbors have to accept normal inconveniences.

Roots: Real damage to property can result from roots. If you prove this damage, it’s absolutely serious.

Your neighbor is responsible for his tree causing damage. But wait. You must ask your neighbor’s permission before cutting the damaging roots. The case law is clear - if you cut the roots yourself, even on your land, your neighbor can successfully sue you and be compensated for any damage to his tree.

The climax is the scene where you talk about it with your neighbor. This is where the storyline branches out so to speak.

The neighbor may correct the problem and the play happily ends right there, the last act being the acceptance of the laws by both parties attending together the cutting of the roots ceremony.

If your neighbor is uncooperative the closing scenes have Tarzan descending from the treetops to be present at a court hearing after a formal letter to your neighbor requesting a remedy will presumably go unheeded.

The next scene will have you lumbering along in a court hallway with a close up of, ideally, an expert report proving the neighbor’s tree roots are causing damage. The judge has a wide variety of tools to cut down any neighborly wrongful stubbornness if need be - injunction, possible pecuniary award - the ultimate result being to correct the tree problem for which the neighbor would be found at fault.

Try to work something out with your neighbour. Don’t let it escalate by going to court if you can avoid it. If the roots are causing structural damage and your neighbor fails to accept the law then you may have no choice.

Please send your questions to editor@yourlocaljournal.ca

Website: vmaranda.com

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