Neighbour on the hook for $3,675 in damages due to ‘nuisance cedar’: B.C. tribunal

A B.C. man who reneged on a deal to split the cost of removing a tree with his next-door neighbour is now on the hook for the whole amount, B.C.’s civil resolution has ruled.

Adam Smith was awarded $3,675 in compensation from his neighbour, Graham Smith as damages for “unjust enrichment,” the decision posted online last week says.

There was no dispute that the tree itself was on one side of the property line – but its roots breached the boundary, according to a decision posted online last week.

“The roots of a large cedar tree located on the respondent’s property crossed the property line onto the applicant’s property and began growing into the applicant’s home. The tree roots started to buckle the applicant’s basement floor, among other things,” tribunal vice-chair Andrea Ritchie wrote.

The neighbours initially agreed to split the cost of the tree removal but the day before it was scheduled to take place, Graham Smith told his neighbour he would only pay 25 per cent. Ultimately, he paoid nothing at all.

The first issue the tribunal had to decide was whether or not the tree was more likely than not to have caused the damage to Adam Smith’s property. The evidence considered included recordings of phone calls where Graham Smith agreed to pay some portion of the removal cost and admitted the tree caused the damage.

“I find the tree was a danger to the applicant’s property,” Ritchie wrote, adding that the tree caused “unreasonable interference” for the neighbour, meaning it met the test of being a nuisance and that it was Graham Smith’s responsibility to deal with it.

“I find the respondent failed to adequately deal with the nuisance cedar, despite consistently acknowledging it was a nuisance and causing damage,” Ritchie’s decision continued.

The tribunal found that Adam Smith’s decision to proceed with the tree’s removal even after his neighbour backed out of the agreement to share the cost was reasonable in the circumstances.

Ritchie explained why the law of unjust enrichment applied in this case.

“I find the respondent was enriched because they had a nuisance tree on their property removed at no expense to them. The applicant undisputedly paid to have the tree removed, which resulted in an economic loss. I also find there was no valid basis for the respondent’s enrichment,” she wrote, while also rejecting Graham Smith’s argument that he should only have to pay the 50 per cent he initially agreed to.

“I find the applicant is not bound by his earlier offer to share the expense equally because the respondent rejected that offer,” Ritchie wrote.

After adding tribunal fees and pre-judgment interest, Graham Smith was ordered to pay his neighbour a total of $4,035.77