I have an old oak tree on my lakefront property that leans towards the lake. If the tree is downed by a storm and falls into the lake, who is responsible?—Beatrice, Omemee, Ont.
For removing it? Possibly no one. As we’ve said before, woody debris, especially at the shoreline, is incredibly useful for fish, turtles, and other aquatic and semi-aquatic wildlife, and for the ecology of the lake in general. If you don’t need to remove a fallen tree, don’t.
Still, safety comes first: if it’s a hazard to swimmers, or if it could interfere with boat traffic, it needs to go. (It’s also possible that local bylaws could dictate your responsibilities as a property owner when it comes to fallen trees; check with your municipality.)
We suspect that you’re also asking this question because you’re wondering if a fallen tree could make you vulnerable to a lawsuit. It could.
Is it illegal to have a concrete dock?
“Generally, it’s an owner’s responsibility to maintain their trees,” says Desislava Yordanova of DK Legal Practice in Oakville, Ont. “If someone is hurt by the tree, they could sue the owner.” (If the owner had hired a company to maintain the tree, that liability could be transferred to the company, she points out.)
But we’re getting ahead of ourselves. This tree hasn’t fallen yet. It might never fall.
“If a tree has consistently been growing on a lean for its entire life, it is going to have a low probability for failure,” says Steve Smith, an arborist with Bartlett Tree Experts in Calgary. “Typically, in trees that lean, the lower portion will look like it is leaning, but the upper portion will look more upright, since it has straightened itself out over time.”
But there are signs to watch for, he says. A significant change in lean; a top that used to point up but is now pointing sideways; lifting or movement with the roots; cracking in the soil at the base of the tree; poorly attached limbs or damaged portions; pests and fungus. This is a lot of stuff to watch for. And it’s not even an exhaustive list.
Cottage Q&A: Will this tree survive?
Get an arborist to have a look. And get a report, with their recommendations in writing, says Yordanova. “You need to do all your due diligence to protect yourself,” she says. If you consulted an arborist, took their advice—there are ways to make a tree less prone to failure—and the tree still fell and caused damage or injury, you’ve covered your butt. You could prove, “This is what they suggested, and I did what they said.” (While we’re on the topic of butt-covering, it’s also a good idea to check with your insurance company—would you have coverage for damage from the fallen tree? This can depend on circumstances and your policy. Also, you’re supposed to inform your insurer of potential risks on your property.)
If you’re truly concerned, you could have the tree removed. “All mature trees pose some risk,” says Smith. “It often boils down to an individual’s tolerance for that risk.”
This article was originally published in the May 2024 issue of Cottage Life.
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