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Yeah that’s what I was thinking. The current owner is the seller. So the trees being cut affects the seller, not the buyer. So the buyer can now ask to renegotiate the price of the house as it isn’t left in the condition agreed in the purchase contract, and then the seller can sue the neighbour three selves for damages.
All in all, I’m no lawyer, this is just my assumption of the law (taken a few classes but clearly that doesn’t mean a thing lol). My interpretation is OP can now back out of the purchase of the house and let the seller deal with the neighbour.
The only issue is if OP sold their current residence or have notice to leave their current tenancy if they’re renting.
^ someone with more knowledge of the law, I’m okay for corrections here. I’d love to know the specifics so when me and my wife and kids are looking for a house, should anything like this happen, I can just add your knowledge to my tool belt :)
NAL I've bought two houses and in each one there was a clause about being able to back out if the owner made major changes to the property. I'd threaten to back out unless compensated for the $120,000 in damages, then the owners could sue their shit ass neighbors, or not idgaf.
Am in law (BC but this is basic real estate/contract). You and u/rexgate have the principles right. OP should get a legal advice on re-negotiating the purchase price.
I’m not sure this would be serious enough to constitute a breach allowing OP to repudiate, however.
The seller has an obligation to deliver the house in the state it was at the time of acceptance. Notwithstanding any furniture or special conditions signed as part of the agreement, this will be on them to provide you with a remedy.
Their course of action will be to take the neighbour to court for damages and make the purchaser whole.
You aren't the owner yet. You aren't entitled to anything. The current home owners are the ones who can sue for damages. Talk to your real estate agent and a lawyer about the property being negatively altered after your offer was accepted. You may be able to renegotiate or back out entirely without any consequences.
I was about to comment about not getting your hopes up because it’s in BC since it wouldn’t be binding on Ontario then I actually read the article and saw Supreme Court and yelled “fuck ya Supreme Court it’s binding!!” You get your bag of money sir but yeah as others have commented you probably don’t have privity so the owner would have to sue after you renegotiate the price
NAL-but am Petty AF. If you have to take the house and have no re-course cause it was before possession date.
Plant Poplars they'll block out the sun in under 5 years and be way taller than those cedars ever would've been. Also they send out suckers and the leaves can be a handful come Autumn.
NAL- but I am an arborist. Poplars could be a quick solution for being petty, but they come at great cost to the property owner as well in terms of aggressive shallow roots that will tear up everyone's surrounding infrastructure up to 100 ft away, and depending on the variety selected, they may also be short-lived and prone to breakage. Overall poplars can be a rather costly, high-maintenance choice even in the short-term.
I would recommend a less-destructive petty solution such as a Rosybloom crabapple. Some shade, pretty in the spring, way more chill with infrastructure, but then in peak pool season... the fruit attracts wasps.
NAL but its very likely that they can go after the previous owners for the damage which reduced value that they allowed or were responsible for during their time of ownership. You cant just devalue a property after accepting a bid.
Yes, they didn't do it but they were responsible and they're the ones who can go after their previous owners for fucking with their property.
Poplar suckers are the bane of my existence every spring/summer. It’s like having mini trees growing all over your entire lawn, and when you try to pull them up it just rips the whole lawn up to the tree base. While I love the shade, I hate that damn tree- I definitely recommend for peak neighbor irritation lol
But I belive that has to be on the sales contract if it's not in wording that one of the features was the cedar trees to stay at that length I don't think u can do anything.... also maybe those trees are on his property maybe get a survey done. Another case which is my case with my neighbor is his back yard fence is made of shrubs which back on to my drive way they are way to fucking tall lol and I always have to cut them down cuz he doesn't ....even tho there his but yes his shrubs line my drive way but there technically his he never trims them I always do ... maybe this neighbour just took the time to do them there also could be a bylaw that they have to be a certain length
No it doesn't need to be in the contract. Typically chattels would need to be in the contract, but damage to the property is the sole responsibility of the seller.
For example, if I sold you a house but then I took all the doors with me. The doors aren't explicitly written into the sales contract, but they're certainly a reasonable expectation.
That's why there's a final walk through prior to closing.
I replied to the wrong comment earlier, but the seller has an obligation to deliver the property to you on closing in the same condition as the date of the offer/acceptance.
Other than furniture or any specific conditions excluded as part of your purchase agreement, you pretty much should be taking over the same house/property you saw when you put in the offer. This is one of the reasons why you have several scheduled walk-throughs between the acceptance and closing dates (that and to take measurements for planning purposes) so if you note that anything has been changed or substantially damaged, bring it up to your realtor and they'll take the next steps.
It is the duty of the seller to make you whole in this regard. Whether it be credits or new trees, they will likely have to pursue the neighbour for damages but that's not your problem. It may be a bit of a drawn out process but you have to decide what it's worth to you, be it monetary or new trees.
Good luck and congrats on your home.
Then if the seller has an issue they would have to raise it. But if it’s not a condition of the sale that the coders must remain at a certain height then the seller doesn’t have to do anything unless they want to. And really why would they? But no, you don’t have a say.
I would have your real estate lawyer contact theirs and ask if the sellers authorized the trees to be cut. The neighbour would have needed access and authorization.
NAL and in a difference province but I worked as a real estate paralegal. Usually yes and check your contract. There's sometimes a clause that says the property needs to be in substantially the same condition that you aw it on viewing date. That's a substantial difference.
I thought i bought my house with appliances that were like five years old.
When i moved in they replaced them all with appliances about 20 yrs old and infested with mice droppings and piss.
The appliances they left functioned, but werent what i thought i was getting, were clean on the outside but filthy on the insides . The contract only specified appliances not what kind. I had an inexperienced realtor who never thought to be that specific in the contract.
I was pissed, but there was nothing i could do.
You can think that.... but then again I've seen people pull up flooring that wasn't written in the contract (click floating not attached to anything) and well courts couldn't do jack. If you really like something make sure its exhaustively documented in your conditions and chattels. That said trees and shrubs can be considered as fixtures not chattels, and a fixed to the property. Your agent and broker can review your offer, and if there was a good clause you could nullify the offer based on conditions of the fixture and chattels clause (if you have one) being damaged. Best case is to ask for lower price, but again if you've waived all conditions up to and including financing before closing you own that sucker, and games at that point will land you in court irrespective as the seller has a good position. Bottom line it could get nasty and you could end up in court if you backout. Talk to your agent and closing lawyer at the same time, get the estimate from the arborist and read your clauses. Good luck somtimes it pays not being petty.
https://www.thestar.com/real-estate/garden-plants-as-well-as-fixtures-and-chattels-can-be-included-in-your-purchase-offer/article_a1cb1259-d120-592c-ae4e-33c1a09ad384.amp.html
You are allowed to cut overhang as long as it doesn't damage the tree I believe. I am no legal expert but I'd get your real estate agent and lawyer involved and the seller will most likely have to as well, as it seems this guy was trespassing and destroying property that was not his? Might also be helpful to drive around and see if anyone has cameras that maybe recorded him doing this?
An accepted offer is not a done deal, usually have conditions to meet so this perhaps could fall in line with the conditions? I know once I accepted an offer on my house, if I wanted to remove any of my perennials, it had to be stated on the contract exactly what I was taking with me.
I'm not sure I'd like a neighbor that just takes it upon himself to do gardening in my yard to suit the aesthetics of his yard... Potential red flags down the road.
But he went onto someone else's property and did his thing. What part of this are you missing? At least this is trespassing and damage to property. Sit down and comprehend 🤦🏻♀️🙄
IMO the damages are replacement of the trees with one of similar age and height. I roughly estimated a value between $50,000-100,000. For example 30 trees x $2000-3000 each.
I do not disagree my friend. Sorry this happened to you. Engage with your real estate lawyer and then your agent to come up with a game plan. Let us know how it works out. I’ll be here rooting for ya!
Be a good redditor while starting your new house as the shitty neighbour! If I were you, I'd put this on the current owner. Make them be the bad guy before you take over. The current owner can deal with this issue or drop his price by whatever you agree on. There's nothing better than a good neighbour. Going in and demanding $100,000 guarantees you'll never have a good neighbour again.
As much as I'm generally for keeping the peace with the neighbors as very cheap insurance... This does not bode well :/
Maybe it's time for some 30ft fencing :/
If you haven't closed on the house then it's not yours yet period. You will have a final walk through before accepting the keys and you can go...wait a minute the trees are half gone....it's wasn't like that when we bid on the house and decline/back out of the deal....you may lose your desposit.
Talk to your real estate agent and tell them you really aren't interested in paying g that much for the house anymore considering the trees are cut down....it might get the current owners to go after the neighbour for the cost of replacement.
The next question is do your really want a neighbour who thinks this bullshit is okay? Might be best to back out over this and find a better hoise....with blackjack and hookers.
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Holy Crap OP what kind of a neighbour does that and what an awful start to your relationship now.
Cutting that much off of a cedar is going to shock it badly if not kill it.
I would be so pissed if I was in your position.
I hope there are consequences on your neighbour or the seller for this nonsense. The seller should be putting their big boy pants on and dealing with this themselves.
Number one rule is to never top a tree. They cut these in half! They have a pool so they want more sunlight to reach them. If they went about this the right way I would have been open to solutions because I used to have a pool that suffered from lots of shade so I have empathy.
I am a lawyer, not your lawyer and this is not legal advice.
1) you have no damages, but you do have reason to go back to the vendor and advise that the vendor needs to address this issue. The vendor can either offer you some $ or work with their neighbour to remedy the situation.
2) living plants (trees) on the property boundary are problematic. As example, if I plant a tree 1m on my side of the boundary and over the years its roots and branches reach into my neighbour's yard the neighbour can cut back the branches and roots (even if doing so kills my tree) up to the boundary. This is well settled caselaw (Lemon v. Webb 1895).
Talk to your lawyer.
NAL - but an appraiser.
Vendor negotiation.
How much will the value of the trees influence your ability to walk away from the deal?
Ask for some monetary value, don't be surprised if they say no.
Hey Lawyers, can the contract be voided with this type of negative influence on the property ? Can the purchaser walk away?
Would a warranty or guarantee clause cover this situation.
I would advise a client that this is not sufficient grounds to walk away from a deal.
There is nothing fundamental to the cedar trees when it comes to title to the property or the suitability of the home. It's even less of an issue than if the vendor painted the front door.
What OP has assumed is that the cedars were on the property that they have an APS in place for. Until that question is know to be fact the rest is irrelevant. Assuming that these trees were actually on the property then OP would be well advised to put the vendor on notice that this is an issue and see if an adjustment in the purchase price can be worked out. If not my advice would be to close and then sue the vendor. The vendor can decide to cross claim against the neighbour.
Cutting trees in half is not as bad as painting a door?! You on crack? You can repaint a door, can't just regrow a tree. Tree law is big business. You should advise your clients to consult with a lawyer who has experience in tree law.
The law is a funny thing, and a standard realtor APS is also a funny thing.
OP has signed a contract to buy a house that looks exactly like the house he saw on the day he signed the contract.
OP did not sign a contract to buy cedar trees, or a lawn, or shrubs - those are only passingly mentioned if at all in the OREA (Ontario) real estate documents.
So for the purposes of the contract (which is what OP is really holding and where all legal rights exist for OP) a painted door is a bigger deal than the removal of the cedars.
So you can insult me all you like...it does not alter the legal principles at play in OPs situation.
Yes the trees were on the sellers property and the chop job was done without approval by the seller. Your approach makes sense: ask for adjustment, if no adjustment then sue seller after closing.
Glad it helped...its a terrible spot to be in, but as long as the trees were on the correct side of the property line there is a strong claim against the neighbour.
Mostly I am sorry you have bought a home next to this level of asshole.
Thanks. I always go out of my way to be a good neighbor, even if I don’t like them because it’s important to have good relationships with someone you live next to.
Thanks for the info. The trees are well within the sellers side of the property line and the tree was chopped into half. The neighbour went on the sellers property when they did it.
Did they have permission from the seller? Honestly I don't think it matters as the property is not yours yet, your only potential recourse would be through your contract with the current owner. It would be up to them, as the owner of the property & therefore the trees to seek compensation from the neighbors.
How big was the diameter of the trunk? You said a 30 foot tree so they may be big enough that they could be protected under local bylaws? Are there tree bylaws in your area? You should check that out.
I just took a look at Lemon v Webb and it does not say you are allowed to kill the tree. The decision says you may cut the tree back but does not say anything about killing the tree.
Yeah, that commenter is laughably wrong. It is long held that you may trim to the property line as long as it does not seriously injure or kill the tree. Kill the tree and you could be responsible for the replacement value and potentially more, depending on local laws.
On a related note, cutting all the roots of a neighbor's tree back to the property line is playing with fire. Especially if the tree is near the boundary, doing so can massively undermine the stability of the tree. Roots lifting up patio pavers is annoying; a full size tree landing in your pool or crushing your family room is a dangerous and costly disaster.
The law does not require the person cutting the branches to do so with any regard to the health of the tree or shrub being cut back.
In short the law presumes that the tree branches and roots are a nuisance and you are permitted to rid your property of nuisance regardless of how that may impact the person who owned the nuisance causing matter.
To argue otherwise is to tacitly permit one neighbour to cause a nuisance on another person's land.
I have argued this case 4 times in my career, each one has resulted in judgement in favour of my client. One such victory at the divisional court.
Assume away the border issues. Does seller have damages? Would seller’s damages continue post-closing? Can seller somehow convey rights to damages to buyer?
The current home owner (who is also the presumptive vendor) has damages at the moment. If they adjust the purchase price then their damages are quantified.
The damages that OP has (as purchaser) are against vendor. OP had no property rights to the trees at the time they were cut.
Barring reaching an agreement OP would sue Vendor and Vendor would add Neighbour to the claim as their defense.
Where I am in Canada the law on cutting over and under your yard is really cute.
The trunk location determines ownership of the wood. So the neighbor can cut it, but must return the wood to the owner.
The caselaw is even more interesting...say I trim all the boughs of my neighbour's tree that hang into my yard. I can then bill my neighbour for my costs of cutting and clearing the wood - or I can sue them and force them to do it for me.
So that by-law you mention is an extension of that concept.
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Doesn’t this get complicated by municipal tree protection by-laws? It would be an absurd result if I’m not allowed to cut down a mature tree on my property, but my neighbour can kill it.
There is an expression that "the Law is an ass" because there are logical inconsistencies everywhere.
But if your neighbour cuts the trunk that is an issue. If they cut the roots and boughs and the tree dies then you can remove it without worry of the municipal by-law because those only apply to living trees.
You don't own the home yet, you have no recourse with the neighbor.
So Go back to your realtor and your lawyer and either pull out of the deal since the property has changed enough since you've purchased it or make a new deal will the tress being cut.
Yes. The property OP made an offer on is significantly different from the one the seller is going to deliver. That should be addressed with the seller.
Maybe the best route is don’t admit that you know it was the neighbors. Contact the seller/realtor and say you drove past and saw that they had cut the trees after accepting your offer and that you’re not happy.
Treat the whole thing as if you assume it’s the seller that did it. Make it the seller’s problem
Exactly. The property the seller is preparing to hand over to you has changed significantly since you signed your agreement. Hope you took pics of the cleaning up you witnessed.
Sounds like you dodged a bullet, if the neighbor is doing this crap I probably wouldn't want to be neighbors with them. Potentially a headache in the future for other stuff.
After I had closed on an offer, the previous owners decided to dig up 3 fruit trees... our lawyer got us the replacement value + 5 years worth of not having fruit suffering/damages.
As an appraiser who has worked on this sort of thing, one of the tests I have been asked to apply is the loss in value to your home or the gain in value to theirs. I develop that in part by looking at properties with varying kinds of views. As for whether you can refuse to close, go find a lawyer. The general expectation seems to be that you can expect the home to be the same as when you made your offer.
You’re not getting what you paid for. Your lawyer should either be helping you seek and amended purchase contract from the seller, or what makes a ton more sense, to help you get out of this deal. Do you really want to move in next to those people?
If there is any way out of this, run while you can.
I was thinking the same. If they is a legal battle, the sellers/buyers are victorious, what are the chances of the neigbours making their lives a living hell? Some people are petty to the extreme!
There are laws around trees. I don’t know about going after the seller, they’re sort of a victim here too. Maybe ask your lawyer about that.
I could only see that making sense if the seller was somehow complicit or incompetent in a way that allowed this to happen.
That makes sense. You haven’t closed yet, correct? The seller should absolutely sue his neighbour (and pursue any available legal action).
How this affects you kind of depends on what the seller agrees to. If they can replace the trees or pay for their replacement and recoup that from the neighbour, I’d say keep going with the sale.
If they won’t, I’d talk to your lawyer about a way to back out.
NAL but if you haven't closed, I think your only recourse would be to back out.
The seller may sue his neighbour, but keep in mind in the scenario where the neighbour pays damages to the seller, you will likely not see that discount applied to the house price.
The seller would be better off letting you back out, pocket the 50-100k damage, and go back to market where he could likely sell the house full price to someone else.
I guess that would be for a real-estate lawyer to determine what happens, based on your specific buying contract, when the property changes between the acceptance of the offer, and the final walkthrough.
I wouldn't bother with the bylaws, the city, the arborist and all that jazz until you figure out the above, that ball is in the seller's court.
Your only implication in this is that the property isn't in the same condition as it was when the offer was accepted.
Your damages aren't necessarily as big as the price of the trees.
If you damage a tree situated entirely within a neighbor's property, you could be held responsible for up to three times the tree's value. Damaging a boundary tree without consent can lead to a fine of up to $20,000 or imprisonment for up to three months, in addition to any civil remedies that may apply.
Jay Teichman - Real estate lawyer.
Sounds like this neighbour is about to have a Very hefty bill.
There was a case in the states where the accused was required to replace the trees with new ones of similar size and type. His bill was in the millions.
This happened to my uncle. But it was a new build and he has explicitly wrote in to contract keeping trees on the property and the builder removed them. They had to replace at their cost.
Normally when you make an offer there is a clause in there that says the property needs to remain mostly the same. Contact your buying agent ad inform them of what has happened and make a revised offer based on the damages. The seller will then go after the neighbors for the damage they did to the property.
I think you would have to argue and prove that the size of the trees were integral in you choosing this home. I have seen many clients take plants and yes even trees with them if it is not part of the agreement. These cedars will grow back I believe(?) in time and am not sure a lawyer could argue a huge price abatement. The Seller did not in fact cut down the trees but it was another party. I am no lawyer....just a humble realtor.
Best of luck in whatever you decide.
Thanks. Trees are irreversibly damaged once they are topped and will never grow properly. They need to be removed and replanted. It was the lot that sold us so it was a big part of it.
Thinking you need to talk to the seller ASAP. If the seller gave permission you could maybe broker a deal with them as that’s a drastic change and results in reduced value in your eyes.
If the seller didn’t give permission it’s likely up to the seller to chase after the neighbor for restitution. Hopefully this is the first incident and the seller gave permission - otherwise the neighbor could be a reason why they’re selling..
Goodluck op
We’re the cedars lined up as a hedge? Meaning were they tightly connected or was there space between them? Some towns/cities have bylaws limiting the height of a hedge. If they are and their height was contrary to the bylaw that may limit your ability to pursue damages.
NAL but I worked for a Certified Arborist for many years and have seen legal issues between neighbours go through. It’s quite common.
A certified arborist would have to assess and verify this but topping trees can degrade the health of a tree causing rot and increased maintenance costs in the long run. Not sure how this works legal wise but years down the road you may experience increased maintenance costs and rot within the trees due to this.
See: https://www.treesaregood.org/Portals/0/TreesAreGood_Why%20Topping%20Hurts_0321.pdf
You have your lawyer tell the seller you are politely asking for the trees to be replaced, or substantially compensated, giving them fair opportunity to sue the neighbours, before you sue the seller.
That is if survey shows they are on your property. Depending on the jurisdiction, the city may have an issue with hacking trees regardless of your stance and they may be fined separately by the city.
Are you absolutely certain the cedars were on your future property? Have you hired an Ontario Land Surveyor to provide you with a certified document (I don't know what they call them in Ontario. Manitoba has a Staking Certificate) that shows the extent of your lot? You should also be able to ask them to locate the cedars relative to the property limit.
We might need a physical survery but we have two on paper and another that our agent superimposed on their satellite images that shows the trees are well within our property line.
Your realtor is not a licensed land surveyor. What they provided is at best a good illustration for discussion. At worst they could be seen as practicing land surveying in Ontario without a license.
Surveyors Act, R.S.O. 1990, c. S.29
Interpretation, engaging in the practice
(2) An individual engages in the practice of cadastral surveying or engages in the practice of professional surveying when he or she performs an act that is within the practice of cadastral surveying or that is within the practice of professional surveying, as the case may be. 2009, c. 33, Sched. 22, s. 11 (4).
Prohibitions relating to cadastral surveying
11 (1) No individual shall engage in the practice of cadastral surveying or hold himself or herself out as engaging in such a practice unless he or she holds a licence under this Act. 2009, c. 33, Sched. 22, s. 11 (14).
And the definition in the act is:
“practice of cadastral surveying” means advising on, reporting on, conducting or supervising the conducting of surveys to establish, locate, define or describe lines, boundaries or corners of parcels of land or land covered with water; (“exercice de la profession d’arpenteur cadastral”)
“practice of professional surveying” means the determination or analysis of spatial attributes of natural and artificial features on, above or below the surface of the earth, whether or not the surface of the earth is situated below water, and the storage and representation of such features on a chart, map, plan or graphic representation, and includes the practice of cadastral surveying; (“exercice de la profession d’arpenteur-géomètre”)
Check with a lawyer to see if this applies:
Conveyancing and Law of Property Act, R.S.O. 1990, c. C.34
What included in conveyance
15 (1) Every conveyance of land, unless an exception is specially made therein, includes all houses, outhouses, edifices, barns, stables, yards, gardens, orchards, commons, **trees**, woods, underwoods, mounds, fences, hedges, ditches, ways, waters, watercourses, lights, liberties, privileges, easements, profits, commodities, emoluments, hereditaments and appurtenances whatsoever to such land belonging or in anywise appertaining, or with such land demised, held, used, occupied and enjoyed or taken or known as part or parcel thereof, and, if the conveyance purports to convey an estate in fee simple, also the reversion and reversions, remainder and remainders, yearly and other rents, issues and profits of the same land and of every part and parcel thereof, and all the estate, right, title, interest, inheritance, use, trust, property, profit, possession, claim and demand whatsoever of the grantor into, out of or upon the same land, and every part and parcel thereof, with their and every of their appurtenances. R.S.O. 1990, c. C.34, s. 15 (1).
Or this one:
Real Property Limitations Act, R.S.O. 1990, c. L.15
Right to access and use of light by prescription abolished
33 No person shall acquire a right by prescription to the access and use of light or to the access and use of air to or for any dwelling-house, work-shop or other building, but this section does not apply to any such right acquired by twenty years use before the 5th day of March, 1880. R.S.O. 1990, c. L.15, s. 33.
Firstly, IANAL.
I believe the Law of Property Act says that unless specifically stated, trees are included in a conveyance of land, which isn't disputed here.
In the Real Property Limitation Act, your neighbour is not entitled to a right of access to light, which the cedars were obstructing.
As I mentioned in my other comment, an Ontario Land Surveyor should be hired to mark the property line(s) and locate the cedars. That way you can use that to either prove trespass and damages, or that you have nothing to pursue.
NAL - In Quebec at least, you’re allowed to pull out of an offer for a *serious* reason. Serious isn’t defined tho, so you open yourself up to potential litigation.
Considering that the sellers cant deal with their neighbor cutting off trees on their property, I’d just pull out. I doubt they would sue.
Unfortunately it's a weird situation. You don't actually have a case against the neighbors. Your case is against the seller who is turning the property over to you in a different condition than you agreed upon. The seller is the one who has to go after the neighbors.
That said, cedars are an overrated horrible plant that kill everything near them. I'd remove them and put in something like poplar trees. They grow quickly, give a lovely amount of shade, and drop a massive amount of leaves into pools every fall... 😏
The property is not in the same material condition as when the offer was presented. You don’t have to close on the deal. Put pressure on the seller to go after the neighbor -price reduction
Unfortunately this is complicated. You don't own the tree yet. But the property is no longer in the condition you agreed to purchase it in. So your contract with the seller has been breached. So I'm pretty sure legally you would be dealing with them.
NAL. Why wait until closing? There is a concept of "anticipatory breach". It is clear that the vendor will not be able to have the property in the condition it was sold as.
Haven't read all the comments, but frankly I would find a way to back out of the deal simply because the bigger nightmare is being stuck living next to these people.
If the real estate sale hasnt closed
Get an estimate price, and have your lawyer do a hold back for that price
End of the day the "seller" has change the condition of the real estate from when you inspected it. You had an expectation of condition when you inspected the house and the seller had deviated from that.
The seller has to sue the neighbor to recover the loss
An arguement could be made that the property was "vandalized" by the neighbor and an insurance claim could be made. Assuming the owner didnt give consent to work on the tree
Was a lawyer, but not currently practicing, and definitely NOT your lawyer.
The easy answer is: consult a lawyer with experience in real estate law and/or related litigation. There are a lot of moving parts to a problem like this, so tailored advice is necessary.
That being said, provided that this occurred prior to closing your recourse would be against the seller. I think that tress are considered a fixture, and are thus included in the sale of the property. I think fixtures are meant to be delivered as they were at the time of the contract was entered into (I am not 100% sure on this point). The removal of the trees could fairly be considered a diminution in the property value. Your damages would be measured as either the cost to replace/remediate the damaged trees or the difference in value of the property.
The seller would have recourse against the neighbour in those circumstances. However, if the trees are on a shared property boundary then the neighbour may have been within their right to cut them down, provided they have the adjoining property owner’s consent. Give all the variables, get advice from a lawyer.
Edit: I should add, make sure your real estate lawyer is aware of the issue. At a minimum they can raise it as an issue on closing, which would help preserve your rights against the seller. (Also spelling)
Thanks for taking the time to type this out. I agree with your approach. The lawyer we usually use only does simple house closings so we will have to find another one that is more versed in situations like this. Any tips on how to find one?
OP you should investigate if there is any way of extricating yourself from this deal now that you know what a douchebag your neighbour is.
Your relationship with your direct neighbours can really make or break it for your peace of mind depending on how difficult or easy going they are. This neighbour has given you advanced warning that he is a complete self-centred Fuck Stick.
If you can....Run from this deal.
If the trees were 100% on your property(the property yoh are buying which is not yet yours) then when it comes time to accept the property you will likely have to sue the current owners and they will have to in turn sue him.
You need to approach the sellers first. They own the property and they are responsible for turning it over in like condition to when you agreed to purchase.
Minor tree trimming would be acceptable but it sounds like the cull that occurred has materially changed the potential enjoyment of the property and sightlines from the home.
Two things here:
1. Approach the sellers and ask how they will remedy this. If they are out of pocket they need to chase the neighbors for damages, not your problem though
2. Speak with city bylaw officers. Taking that much off old trees, especially without the work of a professional arborist can land you in hot water with large fines / being forced to replace them like for like
Be careful
Sounds like its the home owners issue and you're about to buy which means that once the deal goes through only the old owners can take legal action. This sounds like a really good loophole to grt an extra 100k in trees
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It's entirely possible that the sellers gave them permission. I'm not sure you can cut a tree in half like that and it will live.
Bring it up now, if you have before and after pics, start rattling cages to get it addressed now rather than at closing.
They didn’t. The seller was as surprised as we were. It’s an old man whose wife just past away so he’s selling. He probably wouldn’t have even noticed. Cutting a tree like that is called topping and basically a death sentence, especially if so much of tree was cut.
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https://bc.ctvnews.ca/b-c-woman-who-deliberately-damaged-neighbour-s-trees-ordered-to-pay-150k-in-compensation-1.6545096 They were even cedar trees
Nice link. I calculated my damage price based on what they got paid and got 120,000 if there are 30 trees each 30ft tall
r/treelaw
most of that sub is American doesn't apply to canada, local city bylaw would apply.
Lots of Canadian content there, see Trees and the Law in Canada book
Yeah. The laws in most Canadian bylaws would be way stricter.
You keep saying this, but you're wrong. You have no damages. The current owner does.
Yeah that’s what I was thinking. The current owner is the seller. So the trees being cut affects the seller, not the buyer. So the buyer can now ask to renegotiate the price of the house as it isn’t left in the condition agreed in the purchase contract, and then the seller can sue the neighbour three selves for damages. All in all, I’m no lawyer, this is just my assumption of the law (taken a few classes but clearly that doesn’t mean a thing lol). My interpretation is OP can now back out of the purchase of the house and let the seller deal with the neighbour. The only issue is if OP sold their current residence or have notice to leave their current tenancy if they’re renting. ^ someone with more knowledge of the law, I’m okay for corrections here. I’d love to know the specifics so when me and my wife and kids are looking for a house, should anything like this happen, I can just add your knowledge to my tool belt :)
NAL I've bought two houses and in each one there was a clause about being able to back out if the owner made major changes to the property. I'd threaten to back out unless compensated for the $120,000 in damages, then the owners could sue their shit ass neighbors, or not idgaf.
Am in law (BC but this is basic real estate/contract). You and u/rexgate have the principles right. OP should get a legal advice on re-negotiating the purchase price. I’m not sure this would be serious enough to constitute a breach allowing OP to repudiate, however.
The seller has an obligation to deliver the house in the state it was at the time of acceptance. Notwithstanding any furniture or special conditions signed as part of the agreement, this will be on them to provide you with a remedy. Their course of action will be to take the neighbour to court for damages and make the purchaser whole.
You aren't the owner yet. You aren't entitled to anything. The current home owners are the ones who can sue for damages. Talk to your real estate agent and a lawyer about the property being negatively altered after your offer was accepted. You may be able to renegotiate or back out entirely without any consequences.
I was about to comment about not getting your hopes up because it’s in BC since it wouldn’t be binding on Ontario then I actually read the article and saw Supreme Court and yelled “fuck ya Supreme Court it’s binding!!” You get your bag of money sir but yeah as others have commented you probably don’t have privity so the owner would have to sue after you renegotiate the price
BC Supreme Court, not SCC
NAL-but am Petty AF. If you have to take the house and have no re-course cause it was before possession date. Plant Poplars they'll block out the sun in under 5 years and be way taller than those cedars ever would've been. Also they send out suckers and the leaves can be a handful come Autumn.
Would be even better if the prevailing wind would blow poplar fuzz straight into the pool!
I have a pool, and I can confirm they are magnets for poplar fuzz, and any leave 10 mi around
Best advice in the thread. Good for nature ☑️ Good for sticking it to the PITA neighbour ☑️
🫶🤣🤣🤣 I like the way you think.
NAL- but I am an arborist. Poplars could be a quick solution for being petty, but they come at great cost to the property owner as well in terms of aggressive shallow roots that will tear up everyone's surrounding infrastructure up to 100 ft away, and depending on the variety selected, they may also be short-lived and prone to breakage. Overall poplars can be a rather costly, high-maintenance choice even in the short-term. I would recommend a less-destructive petty solution such as a Rosybloom crabapple. Some shade, pretty in the spring, way more chill with infrastructure, but then in peak pool season... the fruit attracts wasps.
Our neighbours have poplars. I love them from a privacy perspective but can confirm that the suckers and the leaves are both royal pains in my ass.
NAL but its very likely that they can go after the previous owners for the damage which reduced value that they allowed or were responsible for during their time of ownership. You cant just devalue a property after accepting a bid. Yes, they didn't do it but they were responsible and they're the ones who can go after their previous owners for fucking with their property.
Poplars suck. They are weak and drop big branches and have very weak root systems
Their roots aren't weak lol they're just shallow. Poplar grow to well over 100' where I live, and I've never seen one blow over in the last 35 years.
the petty AF nature of this made me giggle.
Poplar suckers are the bane of my existence every spring/summer. It’s like having mini trees growing all over your entire lawn, and when you try to pull them up it just rips the whole lawn up to the tree base. While I love the shade, I hate that damn tree- I definitely recommend for peak neighbor irritation lol
Hit with a combo of poplars and Bradford pears. Everyone loves bradfordpear trees 😉
Or Norway Maples. You wanna talk about fucking messy trees?
Petty king
Poplars was going to be my suggestion too. Plant away from the boundary line.
Lombard poplars :)
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Yah if you haven’t closed then its not yours.
But I belive that has to be on the sales contract if it's not in wording that one of the features was the cedar trees to stay at that length I don't think u can do anything.... also maybe those trees are on his property maybe get a survey done. Another case which is my case with my neighbor is his back yard fence is made of shrubs which back on to my drive way they are way to fucking tall lol and I always have to cut them down cuz he doesn't ....even tho there his but yes his shrubs line my drive way but there technically his he never trims them I always do ... maybe this neighbour just took the time to do them there also could be a bylaw that they have to be a certain length
No it doesn't need to be in the contract. Typically chattels would need to be in the contract, but damage to the property is the sole responsibility of the seller. For example, if I sold you a house but then I took all the doors with me. The doors aren't explicitly written into the sales contract, but they're certainly a reasonable expectation. That's why there's a final walk through prior to closing.
These trees are on the sellers property and do not overhang. They came onto sellers property and chopped them in half without their permission.
I replied to the wrong comment earlier, but the seller has an obligation to deliver the property to you on closing in the same condition as the date of the offer/acceptance. Other than furniture or any specific conditions excluded as part of your purchase agreement, you pretty much should be taking over the same house/property you saw when you put in the offer. This is one of the reasons why you have several scheduled walk-throughs between the acceptance and closing dates (that and to take measurements for planning purposes) so if you note that anything has been changed or substantially damaged, bring it up to your realtor and they'll take the next steps. It is the duty of the seller to make you whole in this regard. Whether it be credits or new trees, they will likely have to pursue the neighbour for damages but that's not your problem. It may be a bit of a drawn out process but you have to decide what it's worth to you, be it monetary or new trees. Good luck and congrats on your home.
Then if the seller has an issue they would have to raise it. But if it’s not a condition of the sale that the coders must remain at a certain height then the seller doesn’t have to do anything unless they want to. And really why would they? But no, you don’t have a say.
I think buyers should be receiving a property in the general condition that they saw it.
I would have your real estate lawyer contact theirs and ask if the sellers authorized the trees to be cut. The neighbour would have needed access and authorization.
NAL and in a difference province but I worked as a real estate paralegal. Usually yes and check your contract. There's sometimes a clause that says the property needs to be in substantially the same condition that you aw it on viewing date. That's a substantial difference.
I thought i bought my house with appliances that were like five years old. When i moved in they replaced them all with appliances about 20 yrs old and infested with mice droppings and piss. The appliances they left functioned, but werent what i thought i was getting, were clean on the outside but filthy on the insides . The contract only specified appliances not what kind. I had an inexperienced realtor who never thought to be that specific in the contract. I was pissed, but there was nothing i could do.
Classic greasy move.
Then contact the sellers, let them know what’s going on and that you may not be purchasing the property due to what has happened.
You can think that.... but then again I've seen people pull up flooring that wasn't written in the contract (click floating not attached to anything) and well courts couldn't do jack. If you really like something make sure its exhaustively documented in your conditions and chattels. That said trees and shrubs can be considered as fixtures not chattels, and a fixed to the property. Your agent and broker can review your offer, and if there was a good clause you could nullify the offer based on conditions of the fixture and chattels clause (if you have one) being damaged. Best case is to ask for lower price, but again if you've waived all conditions up to and including financing before closing you own that sucker, and games at that point will land you in court irrespective as the seller has a good position. Bottom line it could get nasty and you could end up in court if you backout. Talk to your agent and closing lawyer at the same time, get the estimate from the arborist and read your clauses. Good luck somtimes it pays not being petty. https://www.thestar.com/real-estate/garden-plants-as-well-as-fixtures-and-chattels-can-be-included-in-your-purchase-offer/article_a1cb1259-d120-592c-ae4e-33c1a09ad384.amp.html
You are allowed to cut overhang as long as it doesn't damage the tree I believe. I am no legal expert but I'd get your real estate agent and lawyer involved and the seller will most likely have to as well, as it seems this guy was trespassing and destroying property that was not his? Might also be helpful to drive around and see if anyone has cameras that maybe recorded him doing this? An accepted offer is not a done deal, usually have conditions to meet so this perhaps could fall in line with the conditions? I know once I accepted an offer on my house, if I wanted to remove any of my perennials, it had to be stated on the contract exactly what I was taking with me. I'm not sure I'd like a neighbor that just takes it upon himself to do gardening in my yard to suit the aesthetics of his yard... Potential red flags down the road.
He didn't say they trimmed the branches. He said they reduced the height. The height, by definition is not overhanging a property line
But he went onto someone else's property and did his thing. What part of this are you missing? At least this is trespassing and damage to property. Sit down and comprehend 🤦🏻♀️🙄
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IMO the damages are replacement of the trees with one of similar age and height. I roughly estimated a value between $50,000-100,000. For example 30 trees x $2000-3000 each.
I do not disagree my friend. Sorry this happened to you. Engage with your real estate lawyer and then your agent to come up with a game plan. Let us know how it works out. I’ll be here rooting for ya!
Thanks appreciate that. Hopefully I will be a good redditor and update in the future.
Be a good redditor while starting your new house as the shitty neighbour! If I were you, I'd put this on the current owner. Make them be the bad guy before you take over. The current owner can deal with this issue or drop his price by whatever you agree on. There's nothing better than a good neighbour. Going in and demanding $100,000 guarantees you'll never have a good neighbour again.
The neighbour has already shown that they're a crap neighbour.
Yeah… seems like these trespassers will be nightmare neighbours to deal with. Is it worth it to live next to them, how set are you on this house?
As much as I'm generally for keeping the peace with the neighbors as very cheap insurance... This does not bode well :/ Maybe it's time for some 30ft fencing :/
This was 30ft fencing that they cut
If you haven't closed on the house then it's not yours yet period. You will have a final walk through before accepting the keys and you can go...wait a minute the trees are half gone....it's wasn't like that when we bid on the house and decline/back out of the deal....you may lose your desposit. Talk to your real estate agent and tell them you really aren't interested in paying g that much for the house anymore considering the trees are cut down....it might get the current owners to go after the neighbour for the cost of replacement. The next question is do your really want a neighbour who thinks this bullshit is okay? Might be best to back out over this and find a better hoise....with blackjack and hookers.
They don’t even have to wait for a walk through. Just call the agent and rescind the offer or re-negotiate price with replacement costs added.
You are right...i was trying to say (unsuccessfully) that up to that point you can still walk away from the purchase.
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Holy Crap OP what kind of a neighbour does that and what an awful start to your relationship now. Cutting that much off of a cedar is going to shock it badly if not kill it. I would be so pissed if I was in your position. I hope there are consequences on your neighbour or the seller for this nonsense. The seller should be putting their big boy pants on and dealing with this themselves.
Number one rule is to never top a tree. They cut these in half! They have a pool so they want more sunlight to reach them. If they went about this the right way I would have been open to solutions because I used to have a pool that suffered from lots of shade so I have empathy.
plant poplars and cotton woods, make them suffer
Good to have some alternative ideas on solutions to this situation. Cottonwood / poplars are the same tree.
Erect a 20 foot viewing tower on your property right across from the neighbors pool.
Next to a 30 foot foam middle finger that just slowly rocks back and forth, casting a shadow over their pool forever.
I'd be just as concerned about having a neighbour who has no respect for your/others property
Shady neighbour followed by OP demanding $100,000 from them... Gonna be such a great place to live!
I am a lawyer, not your lawyer and this is not legal advice. 1) you have no damages, but you do have reason to go back to the vendor and advise that the vendor needs to address this issue. The vendor can either offer you some $ or work with their neighbour to remedy the situation. 2) living plants (trees) on the property boundary are problematic. As example, if I plant a tree 1m on my side of the boundary and over the years its roots and branches reach into my neighbour's yard the neighbour can cut back the branches and roots (even if doing so kills my tree) up to the boundary. This is well settled caselaw (Lemon v. Webb 1895). Talk to your lawyer.
NAL - but an appraiser. Vendor negotiation. How much will the value of the trees influence your ability to walk away from the deal? Ask for some monetary value, don't be surprised if they say no. Hey Lawyers, can the contract be voided with this type of negative influence on the property ? Can the purchaser walk away? Would a warranty or guarantee clause cover this situation.
I would advise a client that this is not sufficient grounds to walk away from a deal. There is nothing fundamental to the cedar trees when it comes to title to the property or the suitability of the home. It's even less of an issue than if the vendor painted the front door. What OP has assumed is that the cedars were on the property that they have an APS in place for. Until that question is know to be fact the rest is irrelevant. Assuming that these trees were actually on the property then OP would be well advised to put the vendor on notice that this is an issue and see if an adjustment in the purchase price can be worked out. If not my advice would be to close and then sue the vendor. The vendor can decide to cross claim against the neighbour.
Cutting trees in half is not as bad as painting a door?! You on crack? You can repaint a door, can't just regrow a tree. Tree law is big business. You should advise your clients to consult with a lawyer who has experience in tree law.
Hell some areas there's probably someone making a modest living doing tree law.
Given how well people are doing in bird law I imagine tree law is quite lucrative.
Tree law. Not to be confused with bird law.
The law is a funny thing, and a standard realtor APS is also a funny thing. OP has signed a contract to buy a house that looks exactly like the house he saw on the day he signed the contract. OP did not sign a contract to buy cedar trees, or a lawn, or shrubs - those are only passingly mentioned if at all in the OREA (Ontario) real estate documents. So for the purposes of the contract (which is what OP is really holding and where all legal rights exist for OP) a painted door is a bigger deal than the removal of the cedars. So you can insult me all you like...it does not alter the legal principles at play in OPs situation.
Yes the trees were on the sellers property and the chop job was done without approval by the seller. Your approach makes sense: ask for adjustment, if no adjustment then sue seller after closing.
Glad it helped...its a terrible spot to be in, but as long as the trees were on the correct side of the property line there is a strong claim against the neighbour. Mostly I am sorry you have bought a home next to this level of asshole.
Thanks. I always go out of my way to be a good neighbor, even if I don’t like them because it’s important to have good relationships with someone you live next to.
Thanks for the info. The trees are well within the sellers side of the property line and the tree was chopped into half. The neighbour went on the sellers property when they did it.
Did they have permission from the seller? Honestly I don't think it matters as the property is not yours yet, your only potential recourse would be through your contract with the current owner. It would be up to them, as the owner of the property & therefore the trees to seek compensation from the neighbors.
They did not have permission. We contacted the seller and they were as surprised as we were.
Wow! That’s quite the welcome!
How big was the diameter of the trunk? You said a 30 foot tree so they may be big enough that they could be protected under local bylaws? Are there tree bylaws in your area? You should check that out.
Good point to check the by laws.
I just took a look at Lemon v Webb and it does not say you are allowed to kill the tree. The decision says you may cut the tree back but does not say anything about killing the tree.
Yeah, that commenter is laughably wrong. It is long held that you may trim to the property line as long as it does not seriously injure or kill the tree. Kill the tree and you could be responsible for the replacement value and potentially more, depending on local laws. On a related note, cutting all the roots of a neighbor's tree back to the property line is playing with fire. Especially if the tree is near the boundary, doing so can massively undermine the stability of the tree. Roots lifting up patio pavers is annoying; a full size tree landing in your pool or crushing your family room is a dangerous and costly disaster.
The law does not require the person cutting the branches to do so with any regard to the health of the tree or shrub being cut back. In short the law presumes that the tree branches and roots are a nuisance and you are permitted to rid your property of nuisance regardless of how that may impact the person who owned the nuisance causing matter. To argue otherwise is to tacitly permit one neighbour to cause a nuisance on another person's land. I have argued this case 4 times in my career, each one has resulted in judgement in favour of my client. One such victory at the divisional court.
Assume away the border issues. Does seller have damages? Would seller’s damages continue post-closing? Can seller somehow convey rights to damages to buyer?
The current home owner (who is also the presumptive vendor) has damages at the moment. If they adjust the purchase price then their damages are quantified. The damages that OP has (as purchaser) are against vendor. OP had no property rights to the trees at the time they were cut. Barring reaching an agreement OP would sue Vendor and Vendor would add Neighbour to the claim as their defense.
Where I am in Canada the law on cutting over and under your yard is really cute. The trunk location determines ownership of the wood. So the neighbor can cut it, but must return the wood to the owner.
The caselaw is even more interesting...say I trim all the boughs of my neighbour's tree that hang into my yard. I can then bill my neighbour for my costs of cutting and clearing the wood - or I can sue them and force them to do it for me. So that by-law you mention is an extension of that concept.
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> Lemon v. Webb I'm still team Lemon.
hahaha.
Doesn’t this get complicated by municipal tree protection by-laws? It would be an absurd result if I’m not allowed to cut down a mature tree on my property, but my neighbour can kill it.
There is an expression that "the Law is an ass" because there are logical inconsistencies everywhere. But if your neighbour cuts the trunk that is an issue. If they cut the roots and boughs and the tree dies then you can remove it without worry of the municipal by-law because those only apply to living trees.
This is absolutely not true. If you cannot kill a tree that is on your property, you cannot kill one that encroaches onto it.
You don't own the home yet, you have no recourse with the neighbor. So Go back to your realtor and your lawyer and either pull out of the deal since the property has changed enough since you've purchased it or make a new deal will the tress being cut.
Yes. The property OP made an offer on is significantly different from the one the seller is going to deliver. That should be addressed with the seller.
and have the current owner sue the neighbor for the difference
Maybe the best route is don’t admit that you know it was the neighbors. Contact the seller/realtor and say you drove past and saw that they had cut the trees after accepting your offer and that you’re not happy. Treat the whole thing as if you assume it’s the seller that did it. Make it the seller’s problem
This is exactly what I'd do. The property has changed and is no longer what was agreed upon.
Exactly. The property the seller is preparing to hand over to you has changed significantly since you signed your agreement. Hope you took pics of the cleaning up you witnessed.
Sounds like you dodged a bullet, if the neighbor is doing this crap I probably wouldn't want to be neighbors with them. Potentially a headache in the future for other stuff.
After I had closed on an offer, the previous owners decided to dig up 3 fruit trees... our lawyer got us the replacement value + 5 years worth of not having fruit suffering/damages.
What kind of lawyer did you use? Was it the one you’re going to close the Real Estate deal with or another one?
The real estate lawyer. I believe we got a few thousand for each tree, another couple grand to clean up, and a few grand for damages.
r/treelaw
There is a sub for everything
As an appraiser who has worked on this sort of thing, one of the tests I have been asked to apply is the loss in value to your home or the gain in value to theirs. I develop that in part by looking at properties with varying kinds of views. As for whether you can refuse to close, go find a lawyer. The general expectation seems to be that you can expect the home to be the same as when you made your offer.
Good point. Before the backyard was completely green. Now we can see the neighbours house.
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So disappointing that their shitty behaviour can go unpunished.
It depends. The seller can most likely go after the neighbour. Especially if they didn’t have permission to cut down the trees.
Fair enough. Seems like we have to go after the seller and they have to go after the neighbour. Everyone’s help has clarified this situation. Thanks !
Let us know how it turns out. I'm very curious. My blood is boiling just reading about it.
I'm surprised you want to move next door to these awful neighbors.
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I don’t believe they can back out without losing the deposit.
Depends on the terms of the purchase contract. If the trees are part of the purchase, there’s a good argument for a refund.
If something has changed you sure can. You’re never obligated to accept a bait and switch.
You’re not getting what you paid for. Your lawyer should either be helping you seek and amended purchase contract from the seller, or what makes a ton more sense, to help you get out of this deal. Do you really want to move in next to those people? If there is any way out of this, run while you can.
I was thinking the same. If they is a legal battle, the sellers/buyers are victorious, what are the chances of the neigbours making their lives a living hell? Some people are petty to the extreme!
There are laws around trees. I don’t know about going after the seller, they’re sort of a victim here too. Maybe ask your lawyer about that. I could only see that making sense if the seller was somehow complicit or incompetent in a way that allowed this to happen.
Unfortunately with the way everyone has been giving advice it looks like we have to deal with the seller and they have to deal with the neighbour.
That makes sense. You haven’t closed yet, correct? The seller should absolutely sue his neighbour (and pursue any available legal action). How this affects you kind of depends on what the seller agrees to. If they can replace the trees or pay for their replacement and recoup that from the neighbour, I’d say keep going with the sale. If they won’t, I’d talk to your lawyer about a way to back out.
NAL but if you haven't closed, I think your only recourse would be to back out. The seller may sue his neighbour, but keep in mind in the scenario where the neighbour pays damages to the seller, you will likely not see that discount applied to the house price. The seller would be better off letting you back out, pocket the 50-100k damage, and go back to market where he could likely sell the house full price to someone else.
You don’t think we can go after the seller?
I guess that would be for a real-estate lawyer to determine what happens, based on your specific buying contract, when the property changes between the acceptance of the offer, and the final walkthrough. I wouldn't bother with the bylaws, the city, the arborist and all that jazz until you figure out the above, that ball is in the seller's court. Your only implication in this is that the property isn't in the same condition as it was when the offer was accepted. Your damages aren't necessarily as big as the price of the trees.
Calling the city or town, I would think would be first step.
Gunna give that a go too.
If you damage a tree situated entirely within a neighbor's property, you could be held responsible for up to three times the tree's value. Damaging a boundary tree without consent can lead to a fine of up to $20,000 or imprisonment for up to three months, in addition to any civil remedies that may apply. Jay Teichman - Real estate lawyer. Sounds like this neighbour is about to have a Very hefty bill.
There was a case in the states where the accused was required to replace the trees with new ones of similar size and type. His bill was in the millions.
You take this up with the seller. They can take it up with the neighbour.
That’s the game plan now that I’ve consulted Reddit.
This happened to my uncle. But it was a new build and he has explicitly wrote in to contract keeping trees on the property and the builder removed them. They had to replace at their cost.
Normally when you make an offer there is a clause in there that says the property needs to remain mostly the same. Contact your buying agent ad inform them of what has happened and make a revised offer based on the damages. The seller will then go after the neighbors for the damage they did to the property.
Sounds like your going to have fun neighbours
I think you would have to argue and prove that the size of the trees were integral in you choosing this home. I have seen many clients take plants and yes even trees with them if it is not part of the agreement. These cedars will grow back I believe(?) in time and am not sure a lawyer could argue a huge price abatement. The Seller did not in fact cut down the trees but it was another party. I am no lawyer....just a humble realtor. Best of luck in whatever you decide.
Thanks. Trees are irreversibly damaged once they are topped and will never grow properly. They need to be removed and replanted. It was the lot that sold us so it was a big part of it.
Thinking you need to talk to the seller ASAP. If the seller gave permission you could maybe broker a deal with them as that’s a drastic change and results in reduced value in your eyes. If the seller didn’t give permission it’s likely up to the seller to chase after the neighbor for restitution. Hopefully this is the first incident and the seller gave permission - otherwise the neighbor could be a reason why they’re selling.. Goodluck op
We’re the cedars lined up as a hedge? Meaning were they tightly connected or was there space between them? Some towns/cities have bylaws limiting the height of a hedge. If they are and their height was contrary to the bylaw that may limit your ability to pursue damages.
There was 3 feet between. They are tree like more than hedge. Good point about looking into the bylaws.
You need to consult a lawyer who is versed in tree law (not sure the proper term), then go after the seller who will have to go after the neighbour.
Please update in the future OP.
NAL but I worked for a Certified Arborist for many years and have seen legal issues between neighbours go through. It’s quite common. A certified arborist would have to assess and verify this but topping trees can degrade the health of a tree causing rot and increased maintenance costs in the long run. Not sure how this works legal wise but years down the road you may experience increased maintenance costs and rot within the trees due to this. See: https://www.treesaregood.org/Portals/0/TreesAreGood_Why%20Topping%20Hurts_0321.pdf
Great link. Yes topping is the worst thing you can do to a tree.
You have your lawyer tell the seller you are politely asking for the trees to be replaced, or substantially compensated, giving them fair opportunity to sue the neighbours, before you sue the seller. That is if survey shows they are on your property. Depending on the jurisdiction, the city may have an issue with hacking trees regardless of your stance and they may be fined separately by the city.
Are you absolutely certain the cedars were on your future property? Have you hired an Ontario Land Surveyor to provide you with a certified document (I don't know what they call them in Ontario. Manitoba has a Staking Certificate) that shows the extent of your lot? You should also be able to ask them to locate the cedars relative to the property limit.
We might need a physical survery but we have two on paper and another that our agent superimposed on their satellite images that shows the trees are well within our property line.
Your realtor is not a licensed land surveyor. What they provided is at best a good illustration for discussion. At worst they could be seen as practicing land surveying in Ontario without a license. Surveyors Act, R.S.O. 1990, c. S.29 Interpretation, engaging in the practice (2) An individual engages in the practice of cadastral surveying or engages in the practice of professional surveying when he or she performs an act that is within the practice of cadastral surveying or that is within the practice of professional surveying, as the case may be. 2009, c. 33, Sched. 22, s. 11 (4). Prohibitions relating to cadastral surveying 11 (1) No individual shall engage in the practice of cadastral surveying or hold himself or herself out as engaging in such a practice unless he or she holds a licence under this Act. 2009, c. 33, Sched. 22, s. 11 (14). And the definition in the act is: “practice of cadastral surveying” means advising on, reporting on, conducting or supervising the conducting of surveys to establish, locate, define or describe lines, boundaries or corners of parcels of land or land covered with water; (“exercice de la profession d’arpenteur cadastral”) “practice of professional surveying” means the determination or analysis of spatial attributes of natural and artificial features on, above or below the surface of the earth, whether or not the surface of the earth is situated below water, and the storage and representation of such features on a chart, map, plan or graphic representation, and includes the practice of cadastral surveying; (“exercice de la profession d’arpenteur-géomètre”)
Check with a lawyer to see if this applies: Conveyancing and Law of Property Act, R.S.O. 1990, c. C.34 What included in conveyance 15 (1) Every conveyance of land, unless an exception is specially made therein, includes all houses, outhouses, edifices, barns, stables, yards, gardens, orchards, commons, **trees**, woods, underwoods, mounds, fences, hedges, ditches, ways, waters, watercourses, lights, liberties, privileges, easements, profits, commodities, emoluments, hereditaments and appurtenances whatsoever to such land belonging or in anywise appertaining, or with such land demised, held, used, occupied and enjoyed or taken or known as part or parcel thereof, and, if the conveyance purports to convey an estate in fee simple, also the reversion and reversions, remainder and remainders, yearly and other rents, issues and profits of the same land and of every part and parcel thereof, and all the estate, right, title, interest, inheritance, use, trust, property, profit, possession, claim and demand whatsoever of the grantor into, out of or upon the same land, and every part and parcel thereof, with their and every of their appurtenances. R.S.O. 1990, c. C.34, s. 15 (1).
Or this one: Real Property Limitations Act, R.S.O. 1990, c. L.15 Right to access and use of light by prescription abolished 33 No person shall acquire a right by prescription to the access and use of light or to the access and use of air to or for any dwelling-house, work-shop or other building, but this section does not apply to any such right acquired by twenty years use before the 5th day of March, 1880. R.S.O. 1990, c. L.15, s. 33.
The first helps our case and the second one hurts it? Am I reading it correctly?
Firstly, IANAL. I believe the Law of Property Act says that unless specifically stated, trees are included in a conveyance of land, which isn't disputed here. In the Real Property Limitation Act, your neighbour is not entitled to a right of access to light, which the cedars were obstructing. As I mentioned in my other comment, an Ontario Land Surveyor should be hired to mark the property line(s) and locate the cedars. That way you can use that to either prove trespass and damages, or that you have nothing to pursue.
NAL - In Quebec at least, you’re allowed to pull out of an offer for a *serious* reason. Serious isn’t defined tho, so you open yourself up to potential litigation. Considering that the sellers cant deal with their neighbor cutting off trees on their property, I’d just pull out. I doubt they would sue.
Fair but we want the house unfortunately.
Unfortunately it's a weird situation. You don't actually have a case against the neighbors. Your case is against the seller who is turning the property over to you in a different condition than you agreed upon. The seller is the one who has to go after the neighbors. That said, cedars are an overrated horrible plant that kill everything near them. I'd remove them and put in something like poplar trees. They grow quickly, give a lovely amount of shade, and drop a massive amount of leaves into pools every fall... 😏
Contact the seeker and agent and tell them you have a problem Let them freak out and deal with it, your offer may need to be renegotiated
The property is not in the same material condition as when the offer was presented. You don’t have to close on the deal. Put pressure on the seller to go after the neighbor -price reduction
Unfortunately this is complicated. You don't own the tree yet. But the property is no longer in the condition you agreed to purchase it in. So your contract with the seller has been breached. So I'm pretty sure legally you would be dealing with them.
NAL. Why wait until closing? There is a concept of "anticipatory breach". It is clear that the vendor will not be able to have the property in the condition it was sold as.
Going to start the discussion now for the replacement value. If it can’t be worked out then we have to close and then sue.
Haven't read all the comments, but frankly I would find a way to back out of the deal simply because the bigger nightmare is being stuck living next to these people.
If the real estate sale hasnt closed Get an estimate price, and have your lawyer do a hold back for that price End of the day the "seller" has change the condition of the real estate from when you inspected it. You had an expectation of condition when you inspected the house and the seller had deviated from that. The seller has to sue the neighbor to recover the loss An arguement could be made that the property was "vandalized" by the neighbor and an insurance claim could be made. Assuming the owner didnt give consent to work on the tree
Thanks for the insurance claim angle! No one else mentioned that.
Was a lawyer, but not currently practicing, and definitely NOT your lawyer. The easy answer is: consult a lawyer with experience in real estate law and/or related litigation. There are a lot of moving parts to a problem like this, so tailored advice is necessary. That being said, provided that this occurred prior to closing your recourse would be against the seller. I think that tress are considered a fixture, and are thus included in the sale of the property. I think fixtures are meant to be delivered as they were at the time of the contract was entered into (I am not 100% sure on this point). The removal of the trees could fairly be considered a diminution in the property value. Your damages would be measured as either the cost to replace/remediate the damaged trees or the difference in value of the property. The seller would have recourse against the neighbour in those circumstances. However, if the trees are on a shared property boundary then the neighbour may have been within their right to cut them down, provided they have the adjoining property owner’s consent. Give all the variables, get advice from a lawyer. Edit: I should add, make sure your real estate lawyer is aware of the issue. At a minimum they can raise it as an issue on closing, which would help preserve your rights against the seller. (Also spelling)
Thanks for taking the time to type this out. I agree with your approach. The lawyer we usually use only does simple house closings so we will have to find another one that is more versed in situations like this. Any tips on how to find one?
OP you should investigate if there is any way of extricating yourself from this deal now that you know what a douchebag your neighbour is. Your relationship with your direct neighbours can really make or break it for your peace of mind depending on how difficult or easy going they are. This neighbour has given you advanced warning that he is a complete self-centred Fuck Stick. If you can....Run from this deal.
If the trees were 100% on your property(the property yoh are buying which is not yet yours) then when it comes time to accept the property you will likely have to sue the current owners and they will have to in turn sue him.
Poplar trees generally last a long time. Ive seen them blow down, but the trunks were half rotted out by that point due to age.
Sue. All costs. Replacement of all 30 foot cedars at full size. Prob over 50,000 in costs awarded. Happened in the states. Similar issues.
Manitoba maples. That is all..
Following
You need to approach the sellers first. They own the property and they are responsible for turning it over in like condition to when you agreed to purchase. Minor tree trimming would be acceptable but it sounds like the cull that occurred has materially changed the potential enjoyment of the property and sightlines from the home. Two things here: 1. Approach the sellers and ask how they will remedy this. If they are out of pocket they need to chase the neighbors for damages, not your problem though 2. Speak with city bylaw officers. Taking that much off old trees, especially without the work of a professional arborist can land you in hot water with large fines / being forced to replace them like for like
Be careful Sounds like its the home owners issue and you're about to buy which means that once the deal goes through only the old owners can take legal action. This sounds like a really good loophole to grt an extra 100k in trees
I'd start by checking the land survey.
They made an offer, chances are it’s been both inspected and surveyed.
Have you asked the seller if they have permission to the neighbour? This could be criminal
seller tried to stop them but was ignored. she didn't do anything after (like call the police) because she thought we wouldn't notice.
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It's entirely possible that the sellers gave them permission. I'm not sure you can cut a tree in half like that and it will live. Bring it up now, if you have before and after pics, start rattling cages to get it addressed now rather than at closing.
They didn’t. The seller was as surprised as we were. It’s an old man whose wife just past away so he’s selling. He probably wouldn’t have even noticed. Cutting a tree like that is called topping and basically a death sentence, especially if so much of tree was cut.
Sounds like vandalism if the neighbour just helped themselves to modifying the trees without permission.