During last month's ice storm, your neighbour's tree fell and damaged your house. Who pays?

For most people, this should be covered under your homeowner insurance policy, whether the branches were from your own trees or your neighbour's trees. However, most policies have $500 deductibles, so you need to decide whether it is worth reporting the claim. If you have all perils coverage, you may also claim for any damages caused to your car by the branches.

The main question asked by readers is whether you can sue your neighbour if their tree fell and damaged your home. The answer is not that easy. Here's why:

Ted Doucette and Daina Parent were neighbours in Sturgeon Falls, Ontario. Parent owned a Lombardi Poplar tree that was 60 feet tall and was situate 5 feet from the boundary fence. On November 30, 1991, Parent's tree snapped off in a wind storm. The tree fell and damaged the fence, a snowmobile trailer and a motor home owned by Doucette. Doucette sued for damages.

It was determined by an arborist that the tree broke because of internal decay. You could not notice this from just looking at the tree, even though it did have some dead branches. In a decision dated September 27, 1996, Justice George Valin of the Ontario Superior Court ruled that Parent was not responsible for the damages. He explained the duty of a tree owner as follows:

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

He found that since Parent was unaware of any exterior signs of trouble, she was not responsible.

The judge also noted a prior decision which stated that at common law, a person who allows land to remain in its natural state is under no obligation to his neighbour in respect of what is standing or growing on it. The court went on to say that the neighbour must protect himself if he/she can, or suffer the consequences.

Judge Valin then stated that Parent was not liable for damage to the plaintiff's property since the growing of a tree is a natural use of land that does not attract liability in nuisance

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

Some related questions are as follows:

What if branches fall down in my yard but do not damage anything. Who pays to remove them?

You will have to clean this up yourself, at your cost, even if it is your neighbour's tree branches that fall into your yard. Most insurance policies do not pay for this type of damage.

Can I just 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 of enter your neighbour's land 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 year, 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 LAWYER, AUTHOR & SPEAKER