‘Unsightly' trees are not a nuisance, B.C. tribunal rules
A seniors' home in B.C.'s Okanagan has lost its bid to compel its next door neighbour to pay for the cost of trimming trees that were encroaching onto its property.
B.C. Civil Resolution Tribunal member Mark Henderson agreed that the overhanging branches were 'unsightly,' but found that the Abbeyfield Houses of Vernon Society had not provided sufficient evidence to justify an order requiring neighbour James Budrow to pay for their removal.
According to Henderson's decision, which was published online Tuesday, there are 'several types of deciduous trees' growing along the property line on Budrow's side.
Photos provided by the society showed 'many branches' extending over the property line, in some cases 'overhanging the roof and touching the gutters of the two-storey house' on the society's side, the decision reads.
In March 2023, Abbeyfield began asking Budrow to come onto its property and trim the trees. The decision indicates he initially agreed to do so, but later refused.
After asking multiple times over the ensuing months, the society eventually hired a contractor to do the work in October 2023.
Abbeyfield applied to the CRT seeking an order for Budrow to reimburse it for the $1,470 it paid to have the trees trimmed.
'It is well-established that a property owner can trim overhanging branches back to the property line that are encroaching on their land,' Henderson's decision reads.
'So, the applicant was within its rights to hire the tree contractor to trim the branches. The respondent is only responsible for the trimming cost if the branches were a nuisance.'
As the applicant in the case, Abbeyfield bore the burden of proving, on the balance of probabilities, that the overhanging branches were a 'substantial, non-trivial, unreasonable interference' with the society's use and enjoyment of the property.
Physical damage caused by the branches would be 'a strong indication' that the interference was unreasonable, and therefore a nuisance, according to the decision.
While Abbeyfield provided photos and aerial video of the encroachment and alleged that it had damaged shingles on the building's roof, Henderson found none of the images were close enough for him to assess whether such damage existed.
The tribunal member also found that the society had provided insufficient evidence to support its assertion that 'leaves and debris from the trees were collecting in the applicant's roof valleys and gutters.'
'Although the photographs show that the overhanging branches are unsightly, I am not persuaded by the available evidence that they unreasonably interfered with the applicant's use and enjoyment of its property,' the decision concludes.
'So, I find that the encroaching trees were not a nuisance. For that reason, I dismiss the applicant's claim.'
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