High hedge growth at the property boundary.
May 21, 2013 | 50,00 EUR | answered by Jan Wilking
There has been a dispute with my neighbor for years over his 3-4m high hedge at the property boundary. A lawsuit has been ongoing since 2009. In October 2010, the court determined a height of 2m to be maintained by December 21 of each year. The hedge was not cut by December 21, a fine was requested, and the cut was made in April 2011. A court date was set to prove that the hedge was not cut in December 2010, with my mother as a witness. The hedge was cut in December 2011 but not in December 2013, with the cut taking place in April 2013.
Now there is another court date regarding 2010 and the costs, with my mother being summoned as a witness again. She is now suffering from dementia and is in a palliative situation due to a tumor. Another summons is no longer possible.
The entire situation indicates that the hedge was not cut in 2010. My lawyer is demanding that I withdraw the lawsuit and is threatening to resign as my legal representative. Should I withdraw because my mother is no longer able to testify? Should I change lawyers? What are my chances now?
Dear advice seeker,
I am happy to answer your inquiry considering your description of the facts and your commitment as follows:
According to your statement, the prospects of success of the lawsuit do not solely depend on the testimony of your mother (which would have limited evidentiary value anyway due to the close relationship), but there are also other indications that no cut was made in 2010. Therefore, based on your brief description, I see no reason to withdraw the lawsuit.
I also cannot see any reason for resigning from the mandate solely based on this. If your lawyer adequately informs you about the risks of the legal process beforehand and possibly advises you to withdraw the lawsuit, it ultimately remains solely your responsibility and decision whether to follow this recommendation or not.
However, both the lawyer and the client are entitled to terminate the mandate at any time without reason, although the lawyer must not terminate it at an inopportune time (for example shortly before a court date), § 627 paragraph 2 BGB.
If your lawyer has not already done so, you should have him explain in detail why he recommends withdrawing the lawsuit (which would also entail costs for you) and how his specific assessment of the facts and legal situation turns out. If you are not convinced by this assessment and still want to pursue the case, you should instruct your lawyer to continue working on it. If your lawyer refuses to do so (or actually resigns from the mandate), you should terminate the mandate and engage another lawyer.
I hope to have provided you with a helpful initial orientation. If you have any uncertainties, please use the free follow-up function.
Please note that in the context of an initial consultation without knowledge of all circumstances, I cannot provide a definitive recommendation. If you require a final assessment of the situation, I recommend contacting a lawyer and discussing the situation with them after reviewing all documents.
Best regards
