The Perils of Trespass
Posted in Real Estate

A West Vancouver homeowner was recently dinged with a civil judgment for $97,000 for cutting down ten trees on his neighbour’s property.  This included a $35,000 award for punitive damages, one of the largest such awards in many years. 

The punitive damages were awarded because the defendant was reckless in determining the location of his property line.  He made no inquiry of his neighbour, did not get a survey done, relied on a conversation he had 20 years earlier with his insurance broker and did not look at a subdivision plan he had in his possession. 

The case is interesting in two respects.  First, the Court based the amount of the punitive damage award on an inference “based only on the neighbourhood he lived in” (the British Properties) that the defendant was a person “of some financial means”.  Second, the case highlights the need to present credible evidence of any alleged drop in property value as a result of a trespass.  In this case, the plaintiff relied only on the views of a realtor about listing prices, rather than the opinion of a property appraiser.  The plaintiff argued the drop in listing price was evidence of diminution in the property value.  The judge rejected the realtor’s evidence because she was not qualified as an expert in property valuation and because her evidence was directly contradicted by the subsequent sale of the property for several hundred thousand dollars more than her estimate of the listing price reduction.  Not a good day for the realtor.

There seems to be a surfeit of trespass cases recently, as reported by Jane Seyd of the North Shore News.  The theme seems to be that the cost of being caught trespassing is steadily increasing.  The moral of the story is that “guessing” where your property line might be could be an expensive act of neglect.  A property owner intent on undertaking landscaping near the edge of their property would be wise to confirm exactly where their property ends and the neighbour’s begins.  Simply asking your neighbour might be a good start.


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