The Case of Tree Topping Trouble

Today we will examine the case of Minicucci v. Liu. The case deals with property rights, trespass and damage to trees and it was decided in the Supreme Court of British Columbia in 2021, but the story began some four years earlier.

In 2017, a Mr. and Mrs. Minicucci finished building a house on a lot in the city of West Vancouver, British Columbia. It was not an inexpensive home, situated in an area with high property values and being located on a hillside with views of the city and sea below. It even had a pool in the back yard.

As it happened, located nearby to the Minicucci property, just next door and a little more uphill, was a lot owned by a Mr. and Mrs. Liu. This family finished building a house on their land sometime after the Minicuccis. It too was an admirable home, being three storeys in height and having its own backyard pool as well.

When the Liu family home was being constructed, the Minicuccis became concerned about privacy. They noticed that, because the Liu home was situated higher on the hillside than theirs, they could potentially see into the backyard of the Minicucci home. Therefore, they decided to plant some trees along the property line as a privacy screen.

The Minicuccis hired an arborist and, in 2017, spent around $38,000 to plant a total of 18 cedar trees along the property boundary. Eight of these trees were 25 feet tall and the other ten were 10 feet tall. The planting went well, and, by the summer of 2018, the trees had grown an additional 3 feet in height.

Unfortunately, in 2018 the Liu family began to take offence with the cedar trees situated along the property line, arguing that they were interfering with their scenic view of the city and the sea. Consequently, Mr. Liu asked for permission to trim the cedar trees, but Mr. Minicucci refused this permission and asked Mr. Liu not to touch the trees.

In August of 2018, while the Minicuccis were away from their home, Mr. Liu decided to do something about the trees, regardless of Mr. Minicuccis refusal. He entered onto the property of the Minicuccis and cut off the tops of multiple cedar trees.

When the Minicuccis returned home they challenged Mr. Liu on what he had done to the trees, but he was not remorseful. He admitted to having cut the tops of the trees off, although there was some disagreement as to how much he had cut off. Mr. Liu claimed to have cut only a small amount, of about 6 inches or so, while Mr. Minicucci argued it was actually 2-3 feet. In any event, Mr. Liu denied that he had done anything wrong.

Indeed, Mr. Liu argued that at least part of the reason he had cut the treetops was that he had been driven to frustration by the improper behaviour of Mr. Minicucci. He stated that, in 2017, Mr. Minicucci had installed a pipe to vent exhaust from his home’s natural gas-powered boiler and that this exhaust pipe was too close to Mr. Lius home; and thus, it was venting foul smelling fumes which interfered with Mr. Lius ability to use his property.

Doubling down on his position that he had done nothing wrong, in a September 2018 email from Mr. Liu to Mr. Minicucci discussing the tree issue, Mr. Liu wrote: “I will report to the by-law about the exhaust and trim the trees over the fence and send you the bill.”

Following this, in October 2018, Mr. Minicucci filed a lawsuit against the Lius in the Supreme Court of British Columbia for the civil tort of trespass because of the unauthorized entry onto the Minicucci property and the damage to the trees. In response, the Lius then filed a countersuit against the Minicuccis, alleging that the fumes from the exhaust pipe constituted a nuisance. Additionally, the countersuit also alleged the Minicuccis were committing the tort of invasion of privacy because, following the tree topping, Mr. Minicucci had installed surveillance cameras which were aimed at the cedar trees along the property line; and these cameras also captured video of what occurred in the Lius’ yards.

Time then passed and, in the spring of 2021, the lawsuit and the countersuit were heard before Madam Justice E. McDonald in the Supreme Court of British Columbia.

At the trial, the lawyer for Mr. Liu argued that, although the tree cutting admittedly took place, it really was a very minor affair and thus did not warrant granting any damages. Alternatively, if any damages were to be granted, they should be minor, considering the minor nature of the harm.

In contrast, the lawyer for Minicucci stated there had been significant damage. As evidence, they presented a report from an arborist who had inspected the trees after the tree topping and found that they would in future now grow outwards more than they would upwards. This would result in them providing less privacy screening and make them less aesthetically pleasing. Seeing as the trees had been permanently altered by the tree topping damage, it would be necessary to replace them, and the arborist estimated it would cost approximately $52,000 to do so.

The plaintiffs also stated that they had experienced emotional distress due to the trespassing, being fearful of a repeated occurrence. Mrs. Minicucci even mentioned she felt uncomfortable in her own home and the Minicuccis mentioned they were considering moving to a new home after the whole affair.

After considering the relevant evidence and caselaw, the justice decided that it would be appropriate to find in favour of the Minicuccis and award general damages in the amount of $17,000. The justice decided not to award the full replacement cost of the trees because they had not been fully destroyed. However, the justice did award a further $1,175.06 in special damages (to cover the cost of the arborist’s report) and an even further $30,000 in punitive damages (to punish Mr. Liu for his especially egregious trespass). This made for a total of $48,175.06 in damages and, to top it off (no pun intended), the court also issued an injunction forbidding the Lius from entering the Minicucci property in the future without their consent; and forbidding them from interfering with the Minicucci trees.

As for the Lius’ countersuit, well the justice didn’t look favourably on it.

With regards to the Lius’ claim of a foul odour from the exhaust pipe, the justice noted that for an odour to be considered a nuisance, and thus be grounds for a successful lawsuit, it had to cause substantial and unreasonable interference with another person’s property rights. The court noted it was not convinced the steam that emanated from the exhaust pipe had any odour, never mind that it caused substantial and unreasonable interference. So, that claim was dismissed and, as a side note, it is worth noting that Mr. Minicucci ended up relocating the pipe to a different location before the trial in any case; a location which did not exhaust in the direction of the Liu property.

As for the second claim from the Lius, that Mr. Minicucci had invaded their privacy by setting up the surveillance cameras, the court also dismissed this allegation. The justice noted the cameras had only been set up after Mr. Liu had trespassed and the purpose of setting them up was to monitor the trees in case of future incidents where Mr. Liu might try to damage them again. This was a reasonable fear, especially given that Mr. Liu had sent an email stating that he might do so again. Plus, Mr. Minicucci had angled the cameras as best that he could so that they were mostly focussed on the trees along the property line and had tried to avoid capturing the Lius’ back yards as much as he reasonably could.

And there ends the case. The tree topping neighbour was held liable for trespass and ordered to pay damages to the Minicuccis.

However, it appears that this judicial ruling was not enough to bring peace between the neighbours. Or at least that is one possible explanation for why the Lius no longer live on the property. Perhaps another is they just wanted a change in scenery. Whatever the reasons, public records show that the Liu home was sold in 2021 for $6.3 million.

SOURCES:

Minicucci v Liu, 2021 BCSC 1640 (CanLII). https://canlii.ca/t/jhnjb

Richter, B. (2021, August 27). West Vancouver couple ordered to pay for topping their neighbours’ trees. North Shore News. https://www.nsnews.com/local-news/west-vancouver-couple-ordered-to-pay-for-topping-their-neighbours-trees-4259783

Vikander, T. (2021, August 30). With ocean views at stake, B.C. man snuck onto neighbour's multimillion-dollar property to cut tops off trees. CTV News. https://bc.ctvnews.ca/with-ocean-views-at-stake-b-c-man-snuck-onto-neighbour-s-multimillion-dollar-property-to-cut-tops-off-trees-1.5567366

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