Executive Summary: Key Legal and Evidentiary Issues

• The Condo Board's authority to remove two spruce trees and a lilac bush from Mr. Way's unit hinged on the interplay between a registered restrictive covenant (the Agreement) and section 65 of the Bylaws.

• Conflict between the Agreement granting the condominium corporation exclusive maintenance rights over all exterior areas and Bylaw 65 allocating tree and shrub responsibility to individual owners could not be harmoniously resolved.

• Condominium bylaws cannot amend or override a registered restrictive covenant, as they are distinct legal instruments requiring different thresholds of owner consent to modify.

• No evidence of actual damage to Mr. Way's residence, foundation, or drainage pipes was established, and the Condo Board obtained no written arborist report or expert assessment to support the necessity of removal.

• The Condo Board's failure to notify, consult, or meet with Mr. Way before and after the Motion, coupled with shifting justifications for removal, constituted improper conduct under section 67 of the Condominium Property Act.

• Despite a procedural defect in the 2022 Board election process, the Motion was not invalidated, as section 28(9) of the CPA preserved acts done in good faith notwithstanding election irregularities.

The dispute at the Village at Terra Losa

The case of Owners: Condominium Plan No. 932 3066 v Way, 2026 ABKB 260, arose from a decision by the board of a bare land condominium corporation in Edmonton, Alberta, to remove two spruce trees and a lilac bush from the property of unit owner Mr. Randall Way. The Village at Terra Losa is a bare land condominium complex consisting of 18 residential structures, each being a side-by-side duplex, for a total of 36 residential units. Mr. Way became the owner of his unit on April 9, 2014, having lived there since September 2013 when his mother was the original owner. Five trees had originally been planted on Mr. Way's property by the developer in the mid-1990s—four evergreen trees planted in a row along the south side of the property and one Manchurian cherry tree. The Condo Board had previously removed the cherry tree in 2013 on the basis that it was dead and two of the evergreen trees in March 2016, citing a danger that the trees could fall down on the adjacent drive land or onto someone's car and that the roots might damage the foundation of his residence or his underground drainage pipes. Mr. Way stated that those trees were strong and healthy and of similar size to the remaining two trees. No professional opinions were provided by the Condo Board to confirm the risks posed by the trees, and no replacement trees were planted.

The governing documents and the bare land condominium structure

Central to the dispute were two key governance instruments. The first was an Easement, Restrictive Covenant and Party Wall Agreement (the "Agreement"), registered on title on November 25, 1993, which gave the condominium corporation the exclusive right and obligation to maintain all areas in the project other than the interiors of individual condominium homes. Without the consent of the Board, occupants were prohibited from planting trees, building fences, erecting barriers, installing satellite dishes, creating flower beds, or otherwise altering any areas which the condominium corporation was required to maintain. The second instrument was the Bylaws, registered on June 16, 2007, which included section 65 (the "Obstruction" provision) allowing owners to maintain shrubs and trees on their units while making owners responsible for removing them if they caused damage to the Residence, Unit, or Common Property, and for the care and maintenance of any landscaping they established. Section 101 of the Bylaws required that each Owner and the Corporation abide by the terms of the Agreement. Because the Village at Terra Losa was a bare land condominium—where individual unit owners typically own the building and land within their unit boundaries—the Agreement effectively transformed it into something resembling a conventional condominium by centralizing exterior maintenance authority in the corporation.

The March 2023 Motion and Mr. Way's objections

On March 14, 2023, the Condo Board passed a motion (the "Motion") stating: "Three spruce trees will be removed this year. The trees in particular are leaking sap on our property and fixtures. Also the roots of these trees are becoming a cause for concern. Untended lilac bushes will also be removed which will give our Village a more pleasant appearance." While the Motion did not specifically reference Mr. Way's trees or lilac bush, it was common ground that it included two trees and the lilac bush on his property. Mr. Way's evidence was that he only found out the Motion might relate to his trees and bush after reviewing the minutes of the March 14, 2023 Condo Board meeting. He wrote to the Condo Board on May 1, 2023, politely asking to meet at their next meeting to obtain a better understanding of the arbor care policy and to discuss options. Having received no response, Mr. Way wrote again on May 11, 2023, requesting to attend the Board's next meeting, outlining his concerns: the prior removal of two evergreens had already made his home hotter in the summer and colder in the winter due to the lack of the insulating effect of the trees, reduced the windbreak effect, and diminished the livability of his courtyard patio. A realtor estimated the loss of value to his property if the trees were removed at a minimum of $10,000, and an American Real Estate Association study determined that landscaped homes sell at 7%–10% higher than identical homes without landscaping, which would amount to a loss of $21,000 if the trees and bush were removed. Mr. Way proposed a collaborative process whereby the Condo Board would provide its reasons and evidence in writing, he would have a reasonable amount of time to consider and consult professionals, and the Board would fully and fairly consider his response to work together toward a reasonable resolution. No meeting ever took place.

The Condo Board's response and escalation

The Condo Board responded by letter on May 12, 2023, speaking in generalities about potential damage that trees could cause in the near future, referencing thousands of dollars in repairs to lawns, sidewalks, driveways, patios and pony walls as well as damages to the underground drainage system. The letter described other units where the Board had removed trees and the owners accepted those decisions. A further letter on June 4, 2023 indicated the Board had often discussed its concern with the spruce trees being so close to Mr. Way's residence and had shared concerns about the state of the lilac bush, confirming the trees would be removed that summer. On June 9, 2023, the Board stated it was unanimous in removing the trees, citing potential serious damage over time to the structure of Mr. Way's unit, courtyard walls, and underground service lines. The concern with the lilac bush was now stated as a safety concern—an impediment to emergency evacuation of the basement area—rather than an appearance concern as originally expressed in the Motion. A cease-and-desist letter dated June 13, 2023 followed from legal counsel to the Condo Board. On June 16, 2023, at the direction of the Condo Board, an arborist attended at Mr. Way's property to carry out the Motion. Mr. Way came out of his house to stop the removal of the trees. The police were called. Ultimately, the arborist was instructed to leave and not perform the work. This litigation then ensued. As of the date of the hearing, Mr. Way was not aware of any damage to his residence, foundation or drainage pipes caused by or being caused by the evergreen trees or lilac bushes, and had not experienced any drainage issues or concerns with the basement since moving into the unit in 2013.

The question of the Condo Board's authority

The Court examined whether the Agreement or section 65 of the Bylaws governed the authority to remove the trees. Both parties agreed the instruments could be read together but urged very different interpretations. The Condo Board argued the Agreement squarely placed in them the exclusive right and obligation to maintain all areas, and section 65(a) merely permitted owners to maintain trees but did not give owners exclusive authority. Mr. Way argued the Agreement established only a plenary power and section 65 of the Bylaws dictated how that power was to be exercised, allocating risk between the parties by placing the responsibility and costs of tree and shrub management on the owners. Justice Akgungor found that the Agreement and section 65 of the Bylaws were in conflict and could not be read harmoniously—each placed the right and obligation to maintain trees and shrubs with a different party. The Court further determined that the Bylaws, as statutory governance instruments that may be amended by special resolution (generally requiring approval of 75% of the owners and owners representing 75% of the unit factors), could not be used to amend or vary the Agreement, a registered restrictive covenant requiring the consent of all registered owners to amend or discharge. The Court declined to apply the "specific governs the general" maxim, finding it was intended to apply within one legal instrument and not as between distinct legal instruments. The Agreement therefore prevailed, and the Condo Board held the authority to direct the removal of Mr. Way's trees and lilac bush.

Validity of the Motion despite election irregularities

Mr. Way challenged the validity of the Motion on the basis that the Condo Board was not properly constituted at the June 15, 2022 Annual General Meeting, where no formal nomination of candidates for election to the Condo Board and no election of the Condo Board took place. The Court acknowledged the nomination and election or acclamation process contemplated by the Bylaws did not appear to have been strictly followed, but found that the constitution and composition of the Condo Board was nevertheless addressed during the President's Report at the AGM. The effect of what transpired was that the four incumbent members were acclaimed as Condo Board members for the following term, and no one, including Mr. Way, objected to this process at that time. The Court applied section 28(9) of the Condominium Property Act, which provides that all acts done in good faith by a board are valid notwithstanding a later-discovered defect in the election or appointment or continuance in office of any member, and declined to invalidate the Motion.

Improper conduct under section 67 of the CPA

Despite upholding the Condo Board's authority, the Court found that the Board engaged in improper conduct by unfairly disregarding Mr. Way's interests. The evidence demonstrated that the Condo Board had historically represented to owners that it had "always worked with the owner of each unit" with respect to landscaping, that "any problems with trees should be presented in writing and the Board will work with the owners to deal with this matter to, in most cases, everyone's satisfaction," and that it tried to "accommodate everyone's needs and wants." The Court found Mr. Way had both a subjectively and objectively reasonable expectation that his concerns would be seriously considered and investigated before any final decision was made. Instead, the Board refused to meet with him, failed to provide specific evidence that his trees were causing or would cause damage, and failed to address the concerns he raised. The Board president, Mr. Goryniuk, acknowledged during cross-examination on affidavit that there was no evidence of any damage to Mr. Way's unit, residence, foundation or drainage pipes, and that he was not even aware of where the drainage pipes were located on Mr. Way's property in relation to the trees. No written report was prepared by the arborist the Condo Board had retained, and no affidavit from the arborist was before the Court. Mr. Goryniuk further acknowledged that no below-ground assessment had ever been undertaken to assess the risk of damage, no quotes had been obtained for the cost of the same, and no structural engineers or geotechnical experts were consulted about potential concerns to retaining walls. He also acknowledged that none of the Condo Board members were arborists or experts on trees. The Court also noted that the Board's justifications for the removal shifted over time—from leaking sap and root concerns in the original Motion, to potential damage to lawns, sidewalks, driveways, patios, pony walls and drainage systems, to proximity to the residence, to potential structural damage and underground service line concerns, to clogged eavestroughs from pine cones and needles, to a retaining wall near the south entrance allegedly shifting, which Mr. Goryniuk later confirmed during cross-examination was not the Condo Board's concern. The Court observed that these circumstances gave rise to a real concern that the Condo Board allowed their view of Mr. Way to improperly influence their refusal to meet with him, as Mr. Goryniuk acknowledged during cross-examination that Mr. Way's complaining had affected the Board's view and that Mr. Way was viewed as a "complainer" rather than someone who pitched in around the Village and helped out.

The ruling and outcome

The Court dismissed the Condo Board's application for a mandatory injunction and set aside the March 14, 2023 Motion. Justice Akgungor directed the Condo Board to reconsider its decision through the process initially sought by Mr. Way on June 5, 2023: the Board must provide Mr. Way in writing its reasons for wanting to remove the trees and lilac bush, along with any arborist documentation, within 30 days; Mr. Way then has 90 days to consider the Board's position, consult professionals, and provide his response and any professional opinion to the Board; within 15 days of receiving Mr. Way's response, the parties must meet to discuss in good faith options for the trees and lilac bush moving forward; and if no resolution can be reached within 45 days of the Board receiving Mr. Way's response and any professional opinion, the Board may proceed with making the final decision in writing, having regard to Mr. Way's response and any professional opinions provided. The above timeframes may be varied by agreement in writing between the parties. The Court reminded the Board that it must give serious consideration to Mr. Way's response and any arborist opinion, and to reasonable options other than removal, such as cutting back the lilac bush where it obscures the window well rather than removing it completely. The Court further noted the Board must act from a place of "informed proactivity" rather than its own best guess. Success in the matter was mixed—the Condo Board was successful in establishing that it has the authority to decide whether trees or bushes should be removed and in resisting the argument that the Motion was invalid due to improper composition of the Condo Board; Mr. Way was successful in establishing improper conduct on the part of the Condo Board pursuant to section 67 of the CPA. The parties were asked to consider costs in light of the mixed success, and if they were not able to agree on costs, they may return to the Court within 60 days to determine a procedure for addressing costs. No exact monetary award was determined by the Court.