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Tree pruning

In our garden stands a lime tree that has been there for about 80 years. The property management of the neighboring building is demanding a trim of the overhanging branches by August 17, 2009. The lime tree is about 12-15 meters tall and is approximately 1.5 meters from the property line. In our last letter to the property management, we referred to the ruling of the Higher Regional Court of Hamburg, MDR 1999 page 930, which states that there is no obligation to trim the tree and that there is protection due to the age of the tree.

Andreas Scholz

Dear inquirer,

A claim for pruning may arise from the state-specific legal provisions of neighbor law applicable to you. Unfortunately, I cannot determine from your question which federal state you come from. Perhaps you could inform me about this in the follow-up. However, the following generally applies:

The required distance to be maintained from the neighboring property depends on the height of the tree. The higher the tree, the greater the distance must be.

The state-specific legal provisions on neighbor law stipulate that a claim for pruning no longer exists once a certain deadline has been exceeded. Let's assume that the tree has already exceeded the required distance for five and a half years at its current height. If the state law specifies a deadline of five years for asserting a claim, the neighbor may no longer be able to assert a claim. Furthermore, the highest court jurisprudence interprets the corresponding state law such that the provision cannot be interpreted restrictively to prevent pruning to the height the trees had at the time of the lawsuit or five years prior. Therefore, if the deadline has passed in your case, you would no longer be required to prune your tree.

However, a claim for pruning could arise as a result of the (unwritten) right of the neighborly community relationship. Despite the absence of a legal basis, a duty to consider each other may apply if an adjustment of conflicting interests beyond the legal regulation seems urgently necessary. A obligation to prune would only exist if the height growth of the trees would lead the neighbor to unusually severe and no longer tolerable burdens. The neighbor would have to prove this in a legal process.

A claim under § 1004 of the German Civil Code could also be considered. Such a claim would exist if the usability of the neighboring property would objectively be restricted by the excessively high tree. Again, this would have to be proven by the neighbor.

If, as mentioned, your neighbor cannot demand pruning because he has to tolerate the tree - either because the deadlines set out in neighbor law have expired or because there is a right to exist - he may still have a claim for payment against you arising from § 906 of the German Civil Code. The claim aims to indemnify the neighbor for the removal of substantial effects (such as leaves and falling branches/fruits on his property).

I hope this information has been helpful to you. Please let me know which federal state you come from so that I can get an overview of the neighbor law provisions applicable to you. Feel free to ask if anything is unclear.

Best regards,

Andreas Scholz, Attorney

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Andreas Scholz