Real Estate Chronicle

A recent Court case based on the Common Law concept of private nuisance clarifies the duty of real property owners to have trees on their properties routinely inspected.

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Trees can be a nuisance.

Common Law recognizes two types of nuisance: public nuisance and private nuisance. A public nuisance is defined as an unlawful act or omission, which endangers the safety or comfort of the public. Examples of public nuisance include obstructing a highway, keeping a common gaming house or selling unwholesome provisions. On the other hand, there are two types of private nuisance. The first involves any wrongful disturbance of an easement or other right in respect of land. The second, by far the most common, involves the act of wrongfully causing or allowing the escape of injurious things onto another person's land such as, for example, water, smoke, smells, fumes, gas, noise, heat, electricity, vibrations, animals and vegetation.

A shade tree that is an object of beauty to the owner of the property upon which the tree stands, may be nothing but a nuisance to the next door neighbour. The neighbour may have to contend with falling leaves, overhanging branches, roots that extend into his drains or the wind-driven fall of the tree onto his property. Since the planting and growth of a tree is a natural use of one's property, the question revolves around the type of remedies that are available to the adjoining neighbour to combat these nuisances. Negligence may come to the neighbour's aid, but the law of nuisance is the principal remedy. Nuisance in this sense refers to a use of one's property, which causes material discomfort and annoyance for the ordinary purposes of life, to a neighbour or to his property.

The most troublesome source of damage is the tree that falls onto the neighbour's home. In one case a windstorm which evidence indicated could occur once every two years, broke off the top portion of a tree approximately thirty-five feet above the ground, which fell on the roof of the adjoining home. While the break occurred because of advanced internal decay and ant-tunnelling, there was no reason for the tree owner to know that the tree was decayed or dangerous and should have been cut down. There was evidence that the neighbour enjoyed the shade provided by the tree which was very close to the property line, and that the neighbourhood in which the two properties were located was well treed and homes were normally built among the trees.

The Judge decided that there was no liability because the growing of the tree was a natural use of the property.

A recent decision, however, examines a different question: whether Common Law imposes a duty on property owners to have trees on their land routinely inspected by an expert to determine whether any of them constitute hazards. This particular action was based on damages as a result of a tree falling on a wharf. The tree was approximately 125 to 150 years old, approximately 180ft. long and approximately 4ft. in diameter. The tree fell because it suffered from a disease, which causes root and trunk rot. There was no wind or other external force that caused the tree to fall. The defendant did not know that the tree was a hazard or that it was under distress of any sort. He also did not have the expertise to recognize a tree that was in distress. He was able to see the top of the tree from his home because eagles perched on it. He did not think that the tree was lacking in foliage.

From a practical point of view, the only way the defendant could have known about the hazardous tree would have been to have his property inspected by an expert. No experts had inspected the property prior to the accident. In fact, the tree grew at the top of a steep, forested slope and, while it was clearly visible from the neighbour's house, the defendant was unaware of the condition of the tree also because it was difficult to access.

On crashing down on the wharf, the fallen tree caused CAD $35,000 in damages and the waterfront owner lost his dock.

There was a difference of opinion between the expert witnesses called by each party as to whether the amount of foliage, the discoloured and raised bark and a ten-degree lean towards the dock were evidence enough of a hazardous tree. However, they did agree that only an expert would have been able to determine that the tree was diseased.

On examining the case law brought forth by the lawyers, the Judge found no duty on the part of property owners of relatively inaccessible, densely forested land to hire experts to routinely inspect trees. In fact, the Judge commented as follows:

"In my view the law does not impose on landowners in British Columbia a duty to hire an expert to routinely inspect their forested land. Reasonableness requires that the landowners pay attention to trees that line busy roads, or are adjacent to homes or areas where there is frequent human traffic. Reasonableness also requires some action to be taken if signs of decay become visible to the ordinary person from a routinely accessible vantage point. It is not reasonable to require landowners to retain an inspector to scale steep slopes and wade through dense underbrush in order to locate signs of decay."

Whereas the instant case was therefore dismissed, the Judge further commented that landowners "[...] who live next to busy roads or homes or areas used by the public, and who have reasonable access to the trees on their properties, have a duty at Law to inspect those trees for signs of disease that justify obtaining expert advice".

Luigi Frascati

luigi@dccnet.com

www.luigifrascati.com

Real Estate Chronicle

Labels: REAL ESTATE

# posted by Luigi Frascati @ Friday, May 11, 2007