Legal question about severe shrub pruning by neighbour

Discussion in 'Conversations Forum' started by joZ, Jun 2, 2008.

  1. joZ

    joZ Active Member

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    My neighbour (#1) has a problem. What do you do when a neighbour (#2) hacks your 15 foot shrubs so badly that holes are left, making them very unsightly, and thinning them so much that they are now see-through? All the shrubs are clearly on #1's property and no permission to hack was given. All the shrubs are now in shock and many of the leaves are turning. Apparently, the city by-law department says it isn't their problem and the Police say unless there was malice they can't help either. I hope it is OK that I post this question...people here seem to have a ton of experience in so many areas....If there is a better forum to ask this question, I'd appreciate the referral.
     
  2. Buddleia

    Buddleia Active Member 10 Years

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    There's little to be done at this point other than to either talk to the neighbour who thinks it's ok to hack someone elses property to bits and advise them to replace or whatever OR to call a property lawyer and get them to write a letter cautioning the neighbour with the same thing. Legally speaking the neighbour was trespassing at the time they were hacking the shrubbery that belonged to someone else. Depending upon the relationship of the 2 neighbours it's hard to say if this is a malicious act or simply someone thinking they were doing someone else a favour. It's quite curious how some think plants need to be severely pruned every now and then.
     
  3. soccerdad

    soccerdad Active Member 10 Years

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    This is not a criminal matter, and so the police will not get involved.

    Nor is it a matter that involves the City in any way at all.

    Your neighbour can sue. That is his/her only route to redress.

    The case is far too small to interest any lawyer, and anyway the sum would be so small that the case would have to be handled in small claims court where lawyers are discouraged, so your neighbour will have to represent himself or herself.

    It does not matter that the defendant did not act with malice: interference with someone else's property rights gives rise to liability even if it is not even negligent, much less malicious.

    Punitive damages are pretty well never awarded in Canada, and we do not have jury trials in small claims court - and almost never in Supreme Court either - so tell your neighbour not to have any fantasies of American-style awards.
     
  4. joZ

    joZ Active Member

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    Ahhh... thanks. I knew someone would have some legal sense that made sense !!
    I couldn't figure out what the issue was but you stated it clearly... about trespassing and about property law. I believe the reason wasn't about "pruning" but about the light that is blocked in this north-facing side of the lot by the high shrubs. Neighbour #2 wanted more light/sun and had expressed it more than once, while Neighbour #1 wanted the privacy the hedge afforded. Now #2 has what they wanted at the expense of the health of the hedge. It is really sad. Thanks for your thoughts.
     
  5. joZ

    joZ Active Member

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    Thanks soccerdad... and Buddleia (who I responded to 1st).
    I have to say I am surprised that there are not more discussions regarding this type of issue. Both of you have clearly stated what my neighbours options are... so I will definitely relay them. It is very sad that this kind of thing can happen, especially with the cost of mature plants these days. The cost, let alone time to replace them, is significant. Obviously, both neighbours need to talk this out... and come to some resolution... PLUS #2 needs to know not to try this again... that is, for peace to reign. Thanks again.
     
  6. joclyn

    joclyn Rising Contributor

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    to consciously chop into someone's bush and dessimate it is clearly something that's done with malice!

    i can't believe there isn't some law on the books with regard to entering someone else's property and damaging it!

    here, you can only cut the portions of a bush/tree that impinge on your property...you don't need to get permission either. you can't cut back further than your property line though.

    i'd suggest the friend go down to city hall and actually read the bylaws. i really find it hard to believe that there isn't something in place...and the police aren't necessarily going to be aware of some little-known and even more rarely-used law. pfft, and the local gov't workers even less likely to know anything!

    so, tell them to go do the footwork and investigate it themselves.
     
  7. Michael F

    Michael F Paragon of Plants Forums Moderator 10 Years

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    Why not? Sounds like a case of trespass and criminal damage to me. If the neighbour had trashed a car belonging to someone else, the police would become involved, so why not if the neighbour had trashed a valuable shrub belonging to someone else?
     
  8. mrtree

    mrtree Active Member

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    Call Julian Dunster (and associates) and get an assesment of the hedge and its worth. It is possible the hedge is worth thousands of dollars and will take thousands to replace. If the neighbour has done the damage then they can be held liable.
     
  9. Ron B

    Ron B Paragon of Plants 10 Years

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    Yes: it pivots on getting a monetary value assigned to the hedge. Even with trees the starting point is often that the perpetrator does not see any intrinsic value in the plants damaged or destroyed, and since in our culture money is what talks...

    If a monetary value is assigned by some officially recognized process then the plants suddenly become property, with legal status.
     
  10. joZ

    joZ Active Member

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    Re: pictures of the hedge

    Great advice. I guess I'm going to have to get involved for a variety of reasons. But perhaps talking is the best place to start... just like we are doing here. It is an education for all. Who would have known what the options were if one hadn't asked the question?

    Here is a picture of the "hedge", the names of the plants I'm not even sure. But I've attached a picture of the leaves of two of the different (tall) plants (trees?). Anyone know? Your help would sure be appreciated.

    Also, here is a "before" and then an "after". There isn't a 'before' that shows the density to the left so much, but just know that it was as bushy on either side. I hope y'all don't think a mountain is being made out of a molehill... if so... let us know and I'll relay the messages. I can't imagine what monetary damage has been done... but it might be worth investigating.

    As you can see it 'was' a beautifully pruned, healthy, thick border. These could be 15-20 years old. It is now very see-through - but perhaps the pictures don't do the reality justice.
     

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  11. Buddleia

    Buddleia Active Member 10 Years

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    I have no clue what kind of plant that is, probably not hardy enough around here to grow. Hopefully one of the west coasters will know.
    I think what has happened here is a classic case of being friendly with your neighbours at all costs. I hope that most people would make their intentions and wishes known up front about what they are thinking re: property lines. I suspect the mad pruner felt his wishes weren't being heard so he did the deed thinking that asking forgiveness was easier than asking for permission. I think what he did was wrong, as a gardener of course. But if he did trespass on someone elses property in order to devalue something that did not belong to him then this is vandalism in my opinion just like graffitti is vandalism. The spray painter may see it as art but the majority would see it as vandalism. If it were me in this situation, I would call my property lawyer, he's a very nice guy and happily answers questions over the phone for free. He gives suggestions and advice as to what to do so he isn't involved, he has even helped me out on Small Claims issues for free, even though he doesn't have to. Only if he or his staff have to actually do something, like send a letter, etc. does he charge. I think if this was my issue he would tell me to go talk to the neighbour and tell him his actions were not appreciated and that I had advised my lawyer and if he does anything like that again without permission then they'd be trouble, or words to that effect. State what the issues are - vandalism, trespassing - and putting it like that might make the pruner realize the error of his ways, hopefully. Unfortunately there is little else to be done, putting a monetary dollar figure on a hedge would be unrealistic and taking someone to court for a dollar amount not worth the trouble for most people in my opinion. Now if your neighbour has time on their hands and more money than brains or is the type that needs to make their point then tell them to knock themselves out at Small Claims court but they will need to have their facts and be able to make a case leaving emotion out of it. I do think it's important that this doesn't happen again so your neighbour will have to feel out how the conversation goes at that time. Relay my sympathies.
     
  12. chimera

    chimera Well-Known Member 10 Years

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    Try Photinia x fraseri.
     
    Last edited: Jun 4, 2008
  13. soccerdad

    soccerdad Active Member 10 Years

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    For the non-Canadians who responded, you are probably basing your beliefs on your own systems of law. Here, almost all law - and certainly 99.99% of all property law - is not statute law made by the legislature; it is Judge-made law. So it is not on the books in the sense of, on the statute books; it will of course be in any property law text (except that it is so basic that most texts would probably not even mention it). When I have a legal problem it seldom crosses my mind to look at the statutes or the by-laws.

    I used to be pretty familiar with the City of Vancouver's by laws, and they just do not address anything like this. This sort of thing is seen as a private law matter to be redressed through the civil courts.

    In fact I doubt that the City even has the power to enact by-laws on such an issue: the City has no inherent power (cities in Canada never do), unlike provincial or federal legislatures that have all the powers that the King/Queen used to have, and the powers of the City of Vancouver to enact bylaws are found solely in a provincial statute called "The Vancouver Charter" by which the provincial legislature (the lawyers out there will know that I should have said "The Lieutenant Governor in Council", but I am speaking in the vernacular) conferred on the City whatever powers the City now has. Outside Vancouver, but in B.C., the statute that confers powers on your city will be the new Act, I think the Local Government Act, which replaced the Municipal Act a few years ago. And no way would the provincial government give the Cities the power to make laws on a subject like this!

    As for criminal law - words fail me. The police cannot of course lay charges. They make recommendations to crown counsel who decide it a prosecution has a decent chance of success and it is in the public interest to bring it bearing in mind such matters as the fact that the prosecution hardly has time to handle all of the shootings and robberies in town. Under no circumstances would something like this generate charges. It might generate giggles in the crown's office,.

    A friendly officer might talk to your neighbour in the hopes of giving him the false sense that he might be charged if he does it again, but that's the most you can hope for.

    You can sue civilly, as I said, but I do not know what the award would be. One of you seemed to assume that the award would be the cost of replacing the hedge. I have always believed that this is the appropriate award of damages, but there have been some highly-publicized cases in which some rich person cut down mature trees on city property to get a better view, often to enhance their property's market value, and the Courts have never awarded anything but trifling damages when the City (as the owner of the trees and hence able to sue to enforce its proprietary rights without having to rely on the Vancouver Charter) sued. The City prosecutor's request for the replacement value of the destroyed trees has failed, to the best of my knowledge. Don't ask me why. Under basic legal principles you should be awarded the "value" of the trees, but the Courts may or may not decide that this means "replacement value"; it might just mean whatever number the Court decides to award.
     
  14. Flaxe

    Flaxe Active Member

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    I was following this thread in silence but I have to mention, soccerdad, thank you for your insight.

    - plant lover/suicidal law schooler
     
  15. soccerdad

    soccerdad Active Member 10 Years

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    No problem

    And don't contemplate suicide yet. Wait for articles.
     
  16. joZ

    joZ Active Member

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    Wow... perhaps this forum should start a brand new subsection entitled Legal Matters & Gardening? This is all very fascinating. Too often people suffer in silence... not able to share their difficulties. I am so glad I took the risk... you all are a good bunch.

    If anyone has the name of a good property lawyer in Vancouver, please let me know. I will pass it on. One never knows where this kind of trouble can lead.

    I think once we learn what type of shrubs they are, whether they are fast or slow growers, whether they can be expected to recover well from being hacked (seen in the pics is part of what was sliced and diced), then an attempt to discuss and/or negotiate can begin.
     

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  17. soccerdad

    soccerdad Active Member 10 Years

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    You do not need a "property lawyer". You would want a litigator. Some of them specialize, notably in employment law (essentially, defending or prosecuting wrongful dismissal cases) where I know three good firms or class actions where I know two good firms or divorce where I know dozens of good lawyers, but as far as I know no one speciailzes in "property litigation". You will need to see a generalist.

    But law is a business, and this matter is far too small for anyone I know even to look at it. A very very recent graduate might be interested in getting involved just for the experience, but if so it would not be anyone at a big or a prestigious firm. I realize that this sounds incredibly callous, but it is the reality. The only real hope is that your neighbour has, through work or family or connections, a lawyer relationship, and can get something done on that basis.
     
  18. Buddleia

    Buddleia Active Member 10 Years

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    I don't think this should go left like this. Silence is like saying it was ok to do that. It's almost like inviting it to happen again. In Ontario If you know a real estate agent they usually know real estate lawyers or someone who has moved recently will know a real estate lawyer. Maybe these people are not used in B.C. for property transactions?
     
  19. Margaret

    Margaret Active Member 10 Years

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    The Law Society will suggest specialist lawyers who will give reasonably priced advice on a variety of issues. I believe that the amount of time spent with the lawyer is limited but they might be able to provide advice about local laws and whether or not it is worthwhile going further. The Law Society of BC's number is 1 800 903 5300 from where we are on the Sunshine Coast, but your's may be different.
    It would be better if it could be settled without resorting to the law but we had "a neighbour from hell" and we really tried to resolve the problems but unfortunately only a visit from a local police officier changed his behaviour. Depends on the individual and the issues but sometimes the only way with bullies is to wave the big stick at them.
    Good luck.
    Margaret
     
  20. soccerdad

    soccerdad Active Member 10 Years

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    There are lots of real estate lawyers who do property transactions, but that has nothing whatsoever to do with litigation.

    Most of them do no litigation at all, but many of them may get involved in litigation when one side backs out of a contract of purchase and sale. A small minority of them may get involved in foreclosures. But that sort of thing has nothing to do with this type of lawsuit.

    But that is all academic, for good neighbour does not need a specialist. The problem is not that people who could handle this case are hard to find: any person who got out of law school could handle this case; it requires nothing but first-term, maybe first-week, law school. The problem is that the economics do not justify it.

    Sure the Law Society will put good neighbour in touch with someone who will give them cheap advice. Or they can make an appointment with a lawyer who will give them limited time for absolutely free through "Access Justice", the late Dugald Christie's organization; many of my friends give time to it. They can go to UBC and talk to the students' clinic there - it used to be "LSLAP", I do not know its current name. But they will just be told that (a) the bad neighbour has committed "a tort", (b) they can be sued, (c) you, the good neighbour, will win, but (d) the award will be small and (e) it does not warrant using a lawyer, you'll have to do it yourself in small claims court.

    You might say "It is not the money it is the principle and good neighbour will pay for a lawyer even though his/her award will be modest". That will make any experienced lawyer faint, for they know it isn't true. Everyone who says such a thing harbours a secret dream that the cost will be so trifling that the lawsuit will in fact be cost-effective and/or, sometimes, a secret dream that there will indeed be some huge award at the end (people who read US newspaper are particularly prone to this latter dream). When they find out that this isn't the case - because it is never ever the case - they always start to complain about the cost. "OK", I say when I hear such talk at the first meeting, "If it isn't the cost can you put say $20,000 as the first installment towards my fees into my trust account?" Suddenly the truth emerges - "Er, when I said it wasn't the money, I was assuming that the cost would be virtually zero", is the tenor of the usual answer. (To be fair, there are exceptions, when incredibly wealthy people start litigation out of "principle", but that is really exceptional: in 25 years I have never seen such a case although I have heard of one in the Okanagon once.)

    This is not just my own view: the Chief Justice of this province has made several speeches recently pointing out that litigation involving sums less than $100,000 is simply not cost-effective any more; my Judge friends tell me that they see more and more self-represented litigants because people increasingly find that the lawyers are too costly for their case.

    Anyway, go ahead and talk to a lawyer. Print this off, bring it with you, and at the end of the meeting, pull it out and ask her/him to comment on what I say. I don't think you'll find any dissent ... or any dissent from the lawyers who out there who are reading this chain ...
     
    Last edited: Jun 4, 2008
  21. M. D. Vaden

    M. D. Vaden Active Member 10 Years

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    Might depend on what the shrubs were and how they were pruned in the past. If they were just tall sheared plants, that's one thing that might be vague.

    Suppose they were very tall Rhododendrons or something, properly thinned to maintain natural branching characteristics:

    In that case, you might be able to get an arborist to do an arborist report for the shrubs, stating that the pruning was damaging. Because although it might not be a tree, arboriculture covers shrubs and trees.

    Then you might have a legal leg to stand on.

    If the foliage was hanging over the property line, then it's not a problem that the neighbor caused by pruning, but a problem that you caused by not restraining your vegetation.

    So there are a few aspects to this.
     
  22. Buddleia

    Buddleia Active Member 10 Years

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    Soccerdad, no wonder there are so many lawyer jokes made in bad taste.
    I feel blessed that I have been treated well by those few I have encountered.

    So what is a person to do? Continue to allow others to abuse them or their property? This is what prompts some to go "postal", not an ideal solution either.
     
  23. soccerdad

    soccerdad Active Member 10 Years

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    You simply have to represent yourself.

    The problem lies in the nature of our legal system. The defence files one affidavit by bad neighbour saying that (s)he spoke to good neighbour and they said (s)he could trim the trees, and that the trimming that they then did was "reasonable in the circumstances", and now you need a full trial for the Judge to see them testify and decide who is telling the truth. In the meantime, the lawyers will want to "discover" - in the states, "depose" - the other side. And of course talk to every other neighbour. And their dog. Good neighbour's lawyer may say "This is all costly and ineffective", but do you dare go to Court without taking such steps yourself when the other side is taking then? And so the hours mount up ... and everyone bills by the hour.

    If you can imagine a solution, I would like to hear it. Our Courts now have a speedy trial system that reduces the cost somewhat, and it may prove useful, but efforts to cut the cost of litigation in the past have all failed.
     
  24. Debby

    Debby Active Member 10 Years

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    I think the photinia will fill in relatively quickly. An option that would not involve discussion at all would be to add shrubs well inside the property line to optically fill in the gaps. A deeper border of shrubs and less lawn would look great. There are many choices for additional shrubs to add beauty and fragrance.
     
  25. joZ

    joZ Active Member

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    Thank you for identifying the photinia.
    My friend did some research and apparently it only grows 30 cm a year.
    While some people have said it looks like the photinia might grow back rather quickly, if it survives from the severe pruning, it is important to put the hack-job in proper perspective - over 15-20 years worth of growth was snipped away. How does one "easily" replace or account for that? Not easily, that is for sure.

    Clearly, the damage is done. The Privacy screen has been ruined and along with it, the associated real estate value that accompanied that unique property attribute. Creating privacy can be expensive these days.

    Just so you know... the photinia, along with the other border shrubs (the names I do not know), were very well trimmed, thick, within "good" neighbour property lines and not overhanging "bad" neighbour's property.

    A solution? Here is a suggestion...
    a) Attempt to talk to "bad" neighbour.
    If "bad" neighbour agrees to pay the piper, then:
    b) Bring in an arborist (or three) to assess the damage and suggest options that will help "good" neighbour regain privacy in the least amount of time, in an attractive manner.
    c) bad neighbour agrees to pay all costs to replace if big hedges die from hack job (within a specified time period). This is put in writing, and notarized.
    d) Kiss and make-up so that all parties can be in both front and back yards without worrying about glaring at one another each day they are out weeding, watering, sunning, etc.
    e) If the above doesn't work, take bad neighbour to small claims. Or not.
    Either bite the bullet and spend the money to re-instate that which was taken away, keeping all receipts for later review... or... just do nothing. Let it go. Life's too short.

    Sounds simple to me.
    But what choice would you make? I dunno. It's a tough one.

    In the meantime...
    - Good Neighbour should keep a detailed log of dates and times of discussions between good and bad neighbour so that any Judge will be able to see the timeline.
    - Pictures are important (which they have).
    - Assessments from "experts" are important (which are needed).
    - A positive and cool-headed approach to discussion of the issues.

    By the way, soccerdad... why doesn't someone propose some environmental bylaws or guidelines that can better help neighbourly issues like this...
    hey... I think you sound like just the guy for the job... !!

    I'd stand behind you.
     

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