Conservation is important, as is the wellbeing of the neighbor: if overhanging branches disturb you, you can use scissors. Also at the risk of the neighbour’s tree dying. But there is one caveat.
Karlsruhe / Berlin (dpa) – Anyone who is annoyed about overhanging branches from the neighbour’s tree can use pruning shears – even if the tree could die as a result of the cut.
The Federal Court of Justice (BGH) confirmed on Friday the right to self-help provided for in the civil code in such a case (Az. V ZR 234/19). However, the top German civil judges made one restriction: If the overreaching tree is protected, for example by a tree protection statute, it must not simply be cut or sawed.
The fate of the actual tree of contention, a 40-year-old black pine in Berlin, has not yet been finally decided. Its broad crown has protruded into the neighbour’s garden for at least two decades – and over a few meters. The neighbors are bothered by the falling cones and needles – he has to dispose of them every month according to his own account. He had asked the owners of the jaws to cut back, in vain. Four years ago it was enough for him and he picked up the pruning shears himself.
Therefore, he was sued by the owners of the pine. They fear that the tree will not stand securely. They were successful at the Pankow / Weißensee district court and at the Berlin regional court.
However, the BGH overturned the appeal judgment – if only because another BGH decision made it obsolete. The highest German civil court ruled two years ago in the case of a Krefeld Douglas fir that the self-help paragraph (§ 910 BGB) also applies to falling needles or cones (V ZR 102/18 – June 14, 2019) and the neighboring branches protruding overhead “Cut off and keep” if they interfere with the use of his property. The only open question was whether this would also apply if a tree was threatened by pruning.
The Karlsruhe judges referred the matter back to the Berlin Regional Court. That must now check whether the use of the property of the defendant is impaired by the spreading pine. “That is obvious,” said the chairwoman of the BGH judge Christina Stresemann when the verdict was pronounced. A neighbor could be affected by leaves, needles, cones and shade. If this is the case, the overhangs may be cut off – unless local tree protection statutes prevent this. “The appellate court will still have to examine whether this is the case here,” said the BGH.
The Berlin Tree Protection Ordinance protects all Scots pines that are 1.30 meters above the ground and have a trunk circumference of at least 80 centimeters. There is nothing of black pines there. And whether the Berlin argument tree had the necessary dimensions, nobody could say at the BGH hearing in March. The fact is that the pine has always been too close to the property line. According to the Berlin Neighborhood Law, there would only have been a right to removal in the first five years.
As far as tree protection is concerned, the BGH judgment sounds harsh, admitted the chairwoman of the BGH judge Stresemann. But it is correct because the owner of a tree has to ensure that branches do not grow over the property. “He is required to do this within the framework of the proper management of his property.” The legally enshrined right to self-help would fail if the affected neighbor was not allowed to use scissors himself if the owner of the tree failed to cut back.
© dpa-infocom, dpa: 210611-99-948901 / 3
PM on the BGH judgment
Announcement by the BGH
