The falling of the leaves, in the autumn season, can create for some neighbours conflictual situations, according to individual tolerance. The birds, and even the trees that attract them, are not seen by all in the same way. They are proof of beauty, nature and peace, for some, while for others, it is mostly a cause of complications and frustrations.
It is important to understand, too, that the law provides that the neighbours, in general, must accept the normal neighborhood annoyances that do not exceed the tolerance they owe each other depending on the nature or the location of their property, or according to local customs (Section 976 of the Civil Code of Quebec (CcQ)). On the other hand, the right to property is a total right to the full use, enjoyment and free disposition, fully, of a property.
Moreover, the municipal regulations can come into play to mark out the presence of trees on the land.
Here is a judgment rendered on the matter (1): In this decision, the applicants ask their neighbours to cut their silver maple, for the reason that the samaras (helicopters), in spring and in summer, and the leaves, once the autumn has come, would block their gutters and the filter of their pool, and make their land and their patio dirty. This would cause them a lot of damage.
The plaintiffs allege that they must pick ten to fifteen bags of leaves in the fall, empty the gutter several times a year and spend several hours to clean the pool, in addition to having to change the canvas twice and having had to install a gazebo on their patio to prevent the leaves from falling into their plates at dinner.
According to the judgment rendered, the defendants argue that their former neighbours have never complained about these elements, that they have their tree pruned every two years by professionals. Their expert mentions that the plaintiffs would be able to put a wire netting on their gutters and a canvas on their pool.
In his assessment the judge mentions that this is a suburban environment where there are many trees; the one in question is located three feet from the land of the applicants.
The judge referred to the fundamental principles of property rights: the right to use, enjoy and dispose of one’s property subject to the limits and exercise requirements set by law. This limit is the disadvantage that exceeds the normal tolerance neighbours owe each other, as earlier mentioned under section 976 of the CcQ.
The judge then addresses three judgments that are worth mentioning:
In the first one, Labine-Forget v. Ionescu et al (9 January 2004), the judge allowed the plaintiffs’ action in part by ordering the cutting of one of the three pines aimed at by the request. It is stated in the decision that it had grown too big and that its resin and needles hindered the operation of a nearby swimming pool that it overlooked.
In the second one, Lapointe et al v. Degrosbois et al (11 November 2004), the judge rejects the appeal, disagreeing with the previous judgment, despite the fact that three poplars drop fluffy kittens at the neighbour’s, in addition to attracting noisy and messy birds and to shade the pool from the neighbours. However, the original decision stated this: “It would be very different if the trees, by their roots, damaged the foundations or also the drainage system of the residences.”
Back to the initial decision, the third ruling, Thibodeau v. Leduc (4 October 2006), also rejects the appeal to cut a silver maple whose roots, samaras and leaves are a nuisance to the applicant, whose gutters are, among other things, obstructed.
On the tolerance that neighbours owe each other, the judge stated the following in his decision:
“The vagueness of the criteria of section 976 thus requires from the judge a rather delicate process of assessment and, as is seen in the case cited, it is almost personal.” He then stated that in the last two decisions, people have chosen to live in the suburbs on land with greenery, that the falling leaves and samaras are a natural phenomenon, that can be easily picked up, and that that meets the tolerance threshold of Section 976 of the CcQ. Everyone being interested in nature, it is also mentioned that one must check if the applicants have taken steps to avoid the inconvenience experienced (e.g., in this case , the installation of a wire netting on the gutters) and if the damage is permanent.
Also: “In the search for a balance between the usages in question (pool, gutters, patio and tree), the Court thinks that the applicant for an injunction must show that he has taken the usual means to avoid the disadvantages that he encounters, like a good neighbour would do.
Here, the applicant is adamant that he will not put a canvas over the pool or a wire netting on his gutters during the time of the samaras. In the opinion of the Court, these two operations, perfectly normal, represent little to address a problem that the applicants describe as intolerable. The Court believes that this is the spirit of neighborhood proposed by the legislator.”
The evidence does not permit the judge to clearly determine that the amounts claimed are attributable to the tree of the defendants and that the damage suffered requires the order to cut the tree.
Therefore, the judge dismissed the plaintiffs’ request.
A summary of this decision leads us to believe that the tolerance that neighbours owe each other concerning the inconveniences brought about, among other things, by the trees, is sufficiently high. It is very important to try, at first, to get along with one’s neighbour and try to minimize the damage before coming to lengthy and costly procedures.
(1) 200-17-009044-074 (21 July 2009)