Overhang (neighbor right)

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Overhang is the name given to the parts of a plant protruding from a neighboring property in neighboring law .

General

Parts of a plant can be branches , roots or twigs of a tree , shrub or hedges . If this overhang exceeds certain limit values , it is an inadmissible disruption of ownership of the property affected by the overhang or the right of the same property , which the owner does not have to tolerate .

history

Overhang problems were already known in Roman law . According to the Twelve Tables Act , the neighbor had the right to pick up the fallen fruit every other day. The right of kapping can also be found in the Twelve Tables. The neighbor, impaired by the shadow of the overhang, could then ask the owner of the plant to clear it up to a height of 15 feet ( Latin quindecim pedes altius ). The owner of the plant had to remove penetrating roots at the request of the affected neighbor. If the owner of the plant did not comply with the request, the impaired neighbor could resort to self-help. The main reason was that the overhang shouldn't take away the sunlight from the neighbor. Ulpian assumed that the overhang from the trunk, branches and twigs in the unfamiliar airspace could be removed regardless of the height.

The word Überhang first appeared as "überhanc" in Middle High German . The Prussian General Land Law (ALR) of June 1794 made it clear that no one is obliged to "tolerate the roots running under his land or the branches of a foreign tree hanging over his border" (I 9, § 287 ALR). However, he had to deliver the removed branches to the owner of the tree (I 9, § 288 ALR), but he was allowed to keep fruits (I 9, § 289 ALR).

In February 1804, the French Civil Code largely adopted the Roman overhang law, Austria followed in June 1811 with the ABGB. The German Civil Code, which came into force in January 1900, also followed Roman law.

Legal issues

The legal basis is Section 910 of the German Civil Code (BGB) , according to which the owner of the property concerned must first set the landowner of the neighboring property a reasonable deadline to remove it. If the removal does not take place within the deadline, the owner concerned may cut off the overhanging parts as part of self-help and keep them ( right of cut ; § 910 para. 1 BGB). The prerequisite is that the overhang must have impaired the use of the property concerned (Section 910 (2) BGB).

When such an impairment occurs depends on the limit values ​​regulated by state law. For example, in the Neighboring Law of North Rhine- Westphalia (NachbG NRW), trees that grow strongly are 4.00 meters, other trees 2.00 meters, strongly growing ornamental shrubs 1.00 meters, other ornamental shrubs 0.50 meters, and fruit trees between 0.50 meters Meters and 2.00 meters and for vines between 0.50 meters and 1.50 meters from the property line. For hedges, a distance of between 0.50 meters and 1.00 meters applies, depending on the height of the hedge (§ 42 NachbG NRW). According to § 43 NachbG NRW, double spacing applies if it concerns agricultural areas , horticultural facilities or vineyards . The distance is measured in accordance with § 46 NachbG NRW from the middle of the tree trunk, bush or vine horizontally and at right angles to the border, namely at the point where the tree, bush or vine emerges from the ground. For hedges, measure from the side.

As a rule, a property owner cannot demand the removal of trees from his neighbors because of the natural emissions they emit on his property if the regional legal distance regulations for planting are observed. If natural immissions occur on the neighboring property despite compliance with the distance limits, the owner of the property is generally not responsible for this according to the assessment made by the legislator. A property owner can remove tree roots from a tree on the neighboring property at the tree owner's expense if they grow over and push concrete slabs up in the garden.

Legal consequences

If his property is impaired, the owner concerned has a right to removal in addition to the right to self-help; both coexist on an equal footing. The right to removal and injunctive relief regulated in § 1004 BGB presupposes that the neighbor is a disturber within the meaning of this provision. Disturbers are those who allow branches to grow over the property line and lead to impairments. The right to cease and desist entitles the right holder to bring an action for an injunction if there is a risk of repetition ; out of court he can try to avert repetition by issuing a warning and / or a declaration of cease and desist.

Demarcation

The overhang is to be legally separated from the raid , in which fruit falls over. Further areas under neighboring law are the superstructure and emergency route .

International

Austria

In Austria , subject to special legislation, in accordance with Section 422, Paragraph 1 of the Austrian Civil Code , every owner can remove the roots of a foreign tree or other foreign plant that have penetrated the ground and cut off or otherwise use the branches hanging above his airspace. But he has to proceed professionally and to protect the plant as much as possible. He can also obtain half of the cost reimbursement from the neighbor if damage has arisen or is threatened by the overhang (Section 422 (2) ABGB). Unlike in Germany, he does not have to set a deadline for his neighbor. He may also harvest the fruits that are still on the overhanging branch. According to Section 422 of the Austrian Civil Code, ownership of a tree depends on the property on which the trunk is located.

Switzerland

In Switzerland , the neighbor can cut and keep protruding branches and penetrating roots if they damage his property and are not removed within a reasonable period in response to his complaint ( Art. 687 para. 1 ZGB ). If a landowner tolerates branches protruding over built or built over ground, he has a right to the fruits growing on them (“Anries”; Art. 687 Paragraph 2 ZGB). The cantons are in accordance with Art. 688 of the Civil Code authorized, for plantings depending on the nature of the land and plant certain distances from neighboring land to prescribe or to oblige the landowners, the encroachment of tree branches or roots of fruit-bearing trees and to allow for these cases the Anries to regulate or repeal.

Liechtenstein

Pursuant to Art. 84 Property Law (SR), the neighbor in Liechtenstein can cut and keep protruding branches and penetrating roots if they damage his property and are not removed within a reasonable period of time in response to his complaint. If a landowner tolerates the protruding of branches on built or built over ground, he has a right to the fruits growing on them ( anries ). Long-stemmed trees that do not belong to the fruit trees and nut trees may not be planted closer than six meters, other fruit trees no closer than four meters, dwarf and terrain trees and bushes no closer than 50 centimeters and vines no closer than 30 centimeters to the border . If the neighboring property is a vineyard, tall trees may not be planted closer than eight meters to the same (Art. 85 para. 1 SR).

France

According to Art. 671 Civil Code (CC) it is permitted in France to keep trees or bushes up to two meters high near the border of the neighboring property at a distance that is a distance from the dividing line between the two properties of Must not be less than 50 centimeters. Trees older than 30 years are exempt. Hedges must be trimmed regularly and, if necessary, trimmed to a height of two meters. According to Art. 672 CC, the neighbor can demand that trees and bushes that are planted at a distance less than the legal distance be uprooted or reduced to the height specified in Art. 671 CC. The owner, on whose property the branches of the trees or bushes of the neighbor advance, can force him to cut them down. The fruits that naturally fall from the branches belong to the neighbor (Art. 673 CC).

literature

See also

Individual evidence

  1. ↑ Twelve Tables Law, 7, 10
  2. ↑ Digest 43, 28, 1 pr.
  3. ↑ Twelve Tables Law, 7, 9a
  4. ^ Digest 43, 27, 1 pr./7
  5. ↑ Ulpian, l. 1, 9, arb. caed 43, 27
  6. ↑ Gerhard Köbler , Etymological Legal Dictionary , 1995, p. 413
  7. ↑ Christian Friedrich Koch (ed.), General Land Law for the Prussian States , Volume 1, 1852, p. 471
  8. ↑ Section 41 (1) NachbG NRW
  9. ↑ BGH, judgment of September 20, 2019, Az .: V ZR 218/18 = NJW 2020, 607
  10. ^ BGH, judgment of November 28, 2003, Az .: V ZR 99/03 = NJW 2004, 603
  11. ^ BGH, judgment of November 28, 2003, Az .: V ZR 99/03, NJW 2004, 603 , 604
  12. ↑ federal and state legislation on the protection of or in front of trees and other plants, especially over the forest, hall, field, townscape, natural and tree protection .
  13. ↑ Arrival / Anris / Anriß / Anries. The word Anries can still be found today in the Alemannic region. Anries is also partly understood to mean the real claim to the fruits growing on the overhanging branches and twigs.
  14. ↑ Art 84 SR is supplemented by Art 108 SR, according to which the exercise of this right "must be carried out with the greatest possible protection of the land used", and that for these rights for "the type and scope of exercise (...) the existing local Exercises are authoritative ”.