If your neighbour’s tree falls in your yard, who pays?‏

When it comes to storm damage, it’s not always clear cut about who pays for the cleanup.

During last month’s ice storm your neighbour’s tree fell and damaged your house. So, who pays?

For most of us, this should be covered under a homeowner insurance policy, whether the branches are from your trees or your neighbour’s. If you have all perils coverage, you may also claim for any damages caused to your car as well.

But it’s not always that clear-cut, as the following case shows:

Ted Doucette and Daina Parent were neighbours in Sturgeon Falls, Ontario. During a late November windstorm in 1991, a 60-foot poplar in Parent’s yard, about five feet from the boundary, snapped. The tree fell on Doucette’s fence, his snowmobile trailer and his motor home. He sued for damages.

A court later heard that an arborist believed the tree broke because of internal decay. You would not have been able to notice this by looking at the tree, even though it did have some dead branches.

In a 1996 decision, Justice George Valin of the Ontario Superior Court ruled that Parent was not responsible for the damages.

He argued:

“A property owner must take steps to ensure that trees located on his/her property are not hazardous to others,” he said. “It would seem to me that an owner can be held liable for failing to maintain a tree where the exterior of the tree provides sufficient warning signals. The signals would include general deterioration, a scarred trunk, discoloured bark, and a large amount of defoliation or dead branches.”

But since Parent was unaware of any exterior signs of trouble, she was not responsible, he ruled.

The judge also cited another decision which stated that in common law, a person who allows land to remain in its natural state is under no obligation to his neighbour in respect to what is growing on it. The court said the neighbour must protect himself, or suffer the consequences.

Related: Ice storm: The last man without power

Judge Valin then stated that Parent was not liable for damage to Doucette’s property since growing a tree is a natural use of land.

Yet the judge also quoted a 1991 decision of the BC Court of Appeal in Hayes v. Davis. Davis’ tree fell during a windstorm and damaged Hayes’ property. In this case, Davis had been warned by Hayes that the tree was dangerous and she did nothing to fix it. The court ruled Hayes was responsible because she was aware of the potential threat and did nothing.

Here are related questions:

If branches fall in my yard but do not damage anything, who pays to remove them?

You will have to clean this up yourself, even if the branches come from your neighbour’s tree. Most insurance policies do not pay for this type of damage.

Can I cut down or trim my neighbour’s tree if I think it is dangerous?

If you think the branches of your neighbour’s tree are too close to your home, you can cut them back to the property line, as long as you do not injure the tree. You cannot cut down the tree or enter your neighbour’s yard to trim branches without permission.

The lessons are as follows:

If you are suspicious that a tree is sick or dying, get the advice from an arborist before doing anything or warning your neighbour. You can find an arborist at www.isaontario.com
If your tree branches fall into your neighbour’s yard, in my opinion, you should be a good neighbor and assist in their removal;
Check your insurance policy to make sure you are covered, should this ever happen again.

By: Mark Weisleder Real Estate, Published on Fri Jan 31 2014