The story of a hedge: headaches for the neighbours

Article locked Published on by Me Annie Lapointe

Topic(s): Legal

Note aux lecteurs : Ces articles sont des résumés de décisions rendues dans les affaires citées. Veuillez noter qu'il ne s'agit pas d'une revue de la jurisprudence et que d'autres décisions peuvent être rendues par la suite ou être différentes et changer l'état du droit. C'est également le cas si les faits ne sont pas les mêmes que ceux présentés dans l'affaire mentionnée.

The story of a hedge: headaches for the neighbours

When autumn arrives, preparation for winter is going on, on most properties: pool closure, leaf raking, installation of shrub protections, gutter cleaning, etc. Some take advantage of this time for the cutting of their hedge. Such maintenance can raise questions however, especially when hedge or fence structures are near the line separating two neighbouring lots. This is all the more complicated when it comes to long-standing plantations made by previous owners. Who should maintain this hedge?

First, you have to ask yourself if this row of trees, or that border of cedars, is planted on the dividing line of your properties, or if it is indeed planted on the neighbour’s property, making him the owner. If this row of trees, or cedar border, is on the dividing line, it is presumed to be adjoining; you are then each responsible for its maintenance, at equal cost, unless otherwise agreed between you. On the other hand, no-one has the right to compromise the condition of the adjoining hedge without the authorization of his neighbour (1).

A recent decision (2) reminds us of the difficulty of determining the ownership of a plantation near the line between two neighbouring lots. In this particular case, there were 54 cedars about 50 feet high, which had been planted in rows on or very close to the two-lot dividing line in the ditch. This hedge encroached 2 to 3 meters on either side of the dividing line of the parties’ properties. One of the owners, the plaintiff, was certain at the time of her purchase and again at the hearing on the matter, that the hedge was her property and therefore she prevented the neighbour from trimming it, including whatever overflowed on her side. A demarcation operation was carried out in order to legally confirm the dividing line of the lots. It appears from the decision that this dividing line is indeed in the middle of the hedge.

In her lawsuit, the plaintiff is seeking more than $36,000 from damages to 43 cedars and flooding. We will only deal with the “cedars” portion.

In his judgement, the judge recalled that the right to property is indeed an important right that is even protected by the Charter of Human Rights and Freedoms. However, this right is marked by limits provided for in the law.

According to the evidence, the judge decided that it was indeed a semi-detached plantation. Among other things, the two previous neighbours had always acted as if the hedge was adjoining. Also: “47 ... since the cedars were planted on or near the dividing line, it is presumed to be adjoining under Section 1003 of the C.c.Q., which states:

“1003. A fence on the dividing line is presumed to be common. Similarly, a wall supporting buildings on either side is presumed to be common up to the point of disjunction. “

48 It should be noted that a hedge is a fence within the meaning of this Section 25. “

The decision states that joint ownership is a form of undivided co-ownership in equal parts and as a result, neither one of the co-owners can destroy or modify the hedge without the consent of the other co-owner. Indeed, it is indicated that each of the co-owners of the hedge (each of the neighbours) must therefore obtain the authorization of the other before trimming the hedge. However, no neighbour can oppose it without a valid reason. In the absence of an agreement, it is the court that must give this authorization; one cannot decide alone.

This may seem excessive, but normally “the rules of good neighbourliness ensure that neighbours trust each other in the maintenance of adjoining works and that requests for express permission are rather rare due to often tacit consent.” (3)

Over the years, the defendant has only had time to prune part of the cedars on his side just a few times while the plaintiff was the owner. Given the disagreement, he then no longer touched it according to the decision. It is in this context that the hedge will not have been trimmed for almost 5 years, causing it to encroach considerably on the defendants’ land and hide the daylight in their home. According to the decision, it is the interruption of the pruning of the cedars that turns out to be the cause of the damage suffered by the hedge. As it was the plaintiff who demanded that no one touch the hedge, the latter “not only breached her own obligation to ensure that the adjoining hedge did not cause any harm, but she also contributed to its degradation.” (4).

The judge also mentioned that the plaintiff’s neighbour had offered no valid reason to justify her refusal to consent to the trimming of the hedge and that she was the architect of her own misfortune. In order to avoid that the neighbours have to ask the authorization of the court each time they wish to maintain the hedge, the judgement authorizes for the future, each neighbour to prune at his expense the branches on his side of the dividing line, without the possibility of opposition of the other party, and to have the tree tops pruned by an expert and this, by respecting certain conditions.

Finally, it should be noted that in all cases, good faith must drive the behaviour of neighbours.
The judge came to the conclusion in this situation that the plaintiff’s legal claim was abusive in the circumstances and in addition to rejecting it, he ordered her to pay $12,500 to her neighbours the defendants, in reimbursement of extrajudicial fees. Judging that the plaintiff’s wrongful conduct was exceeding the limits of tolerance owed to the neighbours, the judge also ordered her to pay $5,000 to each of the two defendants as moral damages.

(1) Gignac v. Simard, 2019 QCCQ 1404 (CanLII), <http://canlii.ca/t/hz8zg> and Michaud v. Benoit, 2015 QCCQ 3490 (CanLII), <http://canlii.ca/t/ghfqp>.
(2) Gilbert v. Charest, 2020 QCCS 427.
(3) Ibid., para 68.
(4) Ibid., para 133.

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