Not seeing the wood through the trees (and overhanging branches)
You know how it is, those sunny summer days where you soak up much-needed vitamin D in your newly tended garden. In recent years, however, this has become increasingly difficult due to your neighbour's trees and overhanging branches. All too often, this causes despair and frustration. Even more often, however, this is unnecessary.
In this Wanted Fact you can read why and learn about trees, planting distances, clearing, plot boundaries and your rights in all of this!
What can you do if your neighbour's trees or branches are bothering you?
When it comes to planting along a common plot boundary, the law can also provide answers to questions you may have been struggling with for some time. Indeed, there are a number of rules that everyone has to respect, or should respect, regarding the planting distance and maintenance obligation of trees along the plot boundary.
Until September 2021, the Field Code applied, after which pretty much all provisions were taken over in the new Book 3 ‘goods’ of the Civil Code. However, the Civil Code does not apply by default in all cases. To know which code applies, you will have to look at when the tree was planted:
- Trees that were planted before September 1, 2021 and were therefore already on the property = Field Code;
- Trees planted from September 1, 2021 = Civil Code.
In this Fact, we first consider the rules regarding the planting distance of trees, both tall (e.g. maple) and low (e.g. fruit trees), and then move on to the possibilities around overhanging branches of trees that are not yours.
An important subdivision here is the distinction between high-trunk trees and ‘other’ trees, such as fruit trees, low-trunk trees or living hedges.
Plantafstand van bomen ten aanzien van de perceelgrens
For trees planted before September 1, 2021, the Field Code applies. Article 35 Field Code says the following about the planting distance from the plot boundary:
‘Tall-stemmed trees may only be planted at a distance determined by established and recognised custom; in the absence of such custom, tall-stemmed trees may only be planted at two metres, other trees and living hedges only at half a metre from the dividing line between two yards.
Fruit trees of any kind may be planted as espaliers, on each side of the wall between two yards, without observing any distance.
If that wall is not common, then only the owner is entitled to use it as a support for his espaliers.’
In other words, tall-stemmed trees may not be closer than two metres from the plot boundary. The same applies to all other types of trees, but at a distance of half a metre.
However, there are exceptions where one does not have to respect these distances. This is the case of:
- trees on the public domain of the government;
- acquisitive prescription of 30 years;
- ‘homestead destination’, this occurs when an owner splits his domain and creates a condition between the properties that can be seen as an easement;
- an agreement between the two owners.
If the tree was planted after September 1, 2021, the Civil Code will apply, specifically Article 3.133, second paragraph:
‘The distance referred to in the first paragraph shall be two metres from the centre of the base of the tree for trees that are at least two metres tall, and half a metre for other trees, shrubs and hedges. The neighbour may demand the pruning or uprooting of plantings that are at a shorter distance, unless the court considers that this constitutes an abuse of rights. In making that judgment, the court shall take into account all the circumstances of the case, including the public interest.’
Trees taller than two metres must therefore stand two metres from the plot boundary, measured from the centre of the base of the tree. Other trees and hedges must be half a metre from the plot boundary.
Again, there are some exceptions. One does not have to consider the above distances in the case of:
- trees belonging to public roads, waters and their appurtenances;
- an agreement between the parties;
- acquisitive prescription of 30 years;
- plantations that do not exceed the fence between the plots.
What can you do in case of overhanging branches?
Regarding the maintenance obligation of trees planted before September 1, 2021, the Field Code says the following in Article 37:
‘The person over whose property branches of trees of a neighbour hang down may compel the neighbour to cut off those branches.
Fruits that fall naturally on the neighbour's property shall belong to the neighbour.
The one in whose yard roots shoot through may cut them away there himself.
The right to cut away the roots or have the branches cut off does not lapse.’
If the branches of a tree or several trees hang over the plot boundary on your property, you can give your neighbour notice to cut them down. You may also cut these branches yourself, but be sure to meet with your neighbour first to discuss the options.
What is very important within this issue is the fact that the right to have overhanging branches cut is not time-barred. However, the right to have the trees on neighbouring plots, which are planted too densely, uprooted does lapse after a period of 30 years. So be sure to keep this in mind in case you would like to take certain steps!
For trees planted after September 1, 2021, the maintenance obligation can be found in Article 3.134 of the Civil Code:
‘If an owner of plantations whose branches or roots shoot through over the plot boundary fails to remove the shoot-through branches or roots within sixty days of a notice of default by registered mail from the neighbour, the latter may cut away and appropriate such branches or roots himself, at the expense of the owner of the plantations. If the neighbour cuts away the overshooting himself, he himself bears the risk for the damage he causes to the plantations. He can also demand that the owner cut it away, unless the court finds that this constitutes an abuse of rights. In making that judgment, the court shall take into account all the circumstances of the case, including the public interest. The right to demand removal cannot be extinguished by prescription.
Fruits that fall naturally from trees onto an adjacent property belong to the person who has the enjoyment of the latter property.’
Thus, if branches of one or more trees are hanging over the plot boundary, you must first send a registered notice of default to your neighbour. He then has 60 days to remedy the problem. If he fails to do so and the deadline has expired, you can remove the tree on your own, at the expense of the owner of the tree. If you choose to remove the branches yourself, you do bear the risk of any damage to other plantings.
You can also demand that the owner remove the branches, unless the court finds that this would constitute an abuse of rights.
Neighbour nuisance
Besides the applicable rules on planting distances and cutting branches, there are also the regulations on neighbour nuisance from Articles 3.101 and 3.102 of the Civil Code.
Based on the rules around neighbour nuisance, you can also be asked to carry out certain works if not carrying out such works causes excessive nuisance and clearly disturbs the balance between the plots, even if the trees in question are, for example, older than 30 years.
What are your options in case of violations of the above rules?
If you face tree and/or branch nuisance, there are several steps you can take to reach a solution.
1. mutual discussion
A first step is logically to have a direct conversation with your neighbour. An open dialogue is often enough to convince your neighbour to do the necessary works.
2. mediation
If a direct conversation does not yield the desired result, mediation can provide relief. Here, an independent mediator will try to create an environment in which the parties can reach a solution together. This way, you avoid having to take immediate legal action.
3. written notice of default
If discussion and mediation are not sufficient, you can send a registered formal notice to the owner of the neighbouring property. In this, you can then ask for the necessary action to be taken within a reasonable period of time. It is not compulsory to do this registered letter, but can be useful to substantiate any proceedings.
4. Procedure before the justice of the peace
If the other party does not respond or refuses to take steps, you can go to the justice of the peace. If necessary and at your request, the justice of the peace can summon the parties to a conciliation hearing to reach an amicable agreement. If you reach an agreement with the other party, this will be recorded in a record of reconciliation. This, like a normal judgment, is binding on the parties involved.
If no agreement can be reached or neighbours do not even appear at all, then a record of non-conciliation will be drawn up. In this case, it is best to proceed to the next step.
5. Subpoena
As a final solution, you can summon the neighbour/owner/user of the neighbouring plot with the annoying or wrongly planted trees. In this case, but also in the previous cases, it is advisable to have the assistance of a lawyer. In this case, the justice of the peace will rule on the situation, taking into account the legality of the plantings and their possible nuisance.
This is often accompanied by a site visit by the justice of the peace, with or without the assistance of an expert, to make the necessary findings.
Either way, therefore, there is a legal basis to act against nuisance or misplanted trees, as long as the trees are not older than 30 years (unless there would be excessive nuisance). You can always ask to have overhanging branches cut, either by the owner/user of the neighbouring plot or by yourself, at the other's expense.
In addition, the general rules of ‘neighbour nuisance’ (Articles 3.101 and 3.102 of the Civil Code) can provide a solution to restore the balance between two neighbouring plots. And this even completely independent of a specific fault of one of the owners.
Conclusion
So there are several possible solutions to act against your neighbour's obstructing trees and/or branches. As the applicable rules may vary depending on the situation and the time of planting, it is advisable to seek timely legal advice. We may be able to relieve you sooner than expected!
Contact Wanted Law!
If you still have questions, or would like to make an appointment with one of our Wanted lawyers to go over the possibilities with you, you can always contact us! We will be happy to help.