Disputes between neighbours on property boundaries

VIKING gardening specialist Manfred Putz is also a sworn and court-certified expert in Austria and gives well-founded advice.

Austrian neighbourhood law from the point of view of a sworn, court-certified horticultural expert

The Austrian Civil Code Amendment Act, which entered into force on 1 July 2004, provides adversely affected property owners the legal means to defend themselves against shadowing from third-party trees and shrubs on neighbouring properties.

Legislation aimed at alleviating problems
The new legislation was intended to introduce the right to light by enshrining a consideration requirement among neighbours in the form of a law and thereby go some way towards alleviating problems with regard to plants on property boundaries.

Disputes involving trees have become an issue owning to the high building density. Ever smaller properties and home owners' privacy needs have evidently resulted in intolerable nuisances for neighbours.

The Austrian Ombudsman Board provided the decisive impetus for this law. The legislators were generally very reticent in this matter owing to concerns that it might further exacerbate the potential for disputes between neighbours.
The new neighbourhood law relates without exception to trees and shrubs. Neighbours encroached upon by the shade of third-party buildings remain unentitled to invoke this civil neighbourhood law. Here, the building regulations and codes of the Austrian counties must be adhered to. To date, the principle that the property owner is entitled to plant trees and other plants up to the boundary of the property without observing any clearance regulations has applied according to Austrian law. This provision remains unchanged in the legislation.

In order to relieve the burden on the courts, the legislators have set up an arbitration service which is tasked with achieving out-of-court settlements in advance of judicial disputes. This arbitration service is available at the premises of the Chamber of Agriculture, the Chamber of Notaries Public and the Chamber of Lawyers.

On the law and its practical implementation from the point of view of a horticultural expert:

Section 364, ABGB (Austrian Civil Code):
1.) Fundamentally, the exercise of property rights applies only insofar as the rights of third parties are not interfered with and the restrictions stipulated in the legislation relating to the maintenance and promotion of the public good are not violated. In particular, the owners of neighbouring properties must act with consideration for one another in the exercise of their rights.

The property owner may prohibit a neighbour from causing nuisance from the latter’s property through wastewater, smoke, heat, odour, noise, vibration or similar, insofar as it exceeds normal local levels and significantly interferes with the habitual use of the property. Direct emission without legal title is impermissible under any circumstances.

Moreover, the property owner may prohibit a neighbour from causing nuisance through trees or other plants due to the depravation of light or air insofar as it exceeds the level indicated in Section 2 and results in an unreasonable impairment in the use of the property.

Federal and Land legislation covering the protection of or against trees and other plants, in particular covering forest, meadow, townscape, nature and tree protection, remains unaffected.

For the first time, consideration for property owners has been enshrined in law. Whether a potential "negligence“ can be derived in advance, when the neighbour recognises that an unacceptable nuisance is to be expected, will become evident during practical application of the legislation in the courts. Fundamentally, however, "consideration" is difficult to define with regard to the litigants. The respective neighbours' interests may differ entirely.

For the expert, consideration has been neglected when an intolerable situation ensues for the adversely affected party, whereby he is no longer able to cut the vegetation himself (e.g. high trees directly on the property boundary).

In principle, action on the part of the adversely affected neighbour is important and recommendable. If the feeling arises that the normal local level is likely to have been exceeded and an unacceptable nuisance is being caused to the neighbouring property (moss formation, stunted plant growth due to shadows, impairment of solar collectors, permanent shadowing of a swimming pool or terrace), it is advisable to respond and draw the neighbour's attention to the matter in writing.

In the case of rows of trees planted in the direct vicinity of residential buildings, it is recommendable to put up resistance at an early stage. However, it must be borne in mind that natural leaf and needle fall as well as falling fruits should be regarded as normal local events, even in the case of rain gutters becoming blocked.
If an existing old row of trees obscures the incidence of light, this is a normal local circumstance and does not constitute grounds for remedy of the nuisance.

Section 422, ABGB:
Any property owner is entitled to remove roots of a third-party tree or other plant penetrating into his soil and to prune or otherwise use branches overhanging his airspace. However, he must do so in a professional manner and must spare the plant from damage to the greatest extent possible. Federal and Land legislation covering the protection of or against trees and other plants, in particular covering forest, meadow, field, nature and tree protection, remains unaffected.

The necessary costs for removing the roots or pruning the branches must be borne by the adversely affected property owner. In the event, however, that damage from the roots or branches has been caused or is evidently imminent, the owner of the tree or plant must reimburse half of the costs incurred.

This provision of the legislation has been significantly changed, and, in particular, consideration has been taken for the plant as a living organism. A professional working method that protects the plant has been stipulated here.

Prior to 2004, roots and branch material could be removed without consideration of the consequential damage. Today, this is no longer possible. The adversely affected party must prune the trees and shrubs in a manner that precludes consequential damage. Due care and attention is therefore necessary. The pruning method employed is subject to the AUSTRIAN STANDARDS.

Disadvantages for the adversely affected party
The adversely affected party may however also suffer disadvantages. A professional working method is often not possible. Cutting the crown, for example, results in a shorter life expectancy of the tree. Moreover, such cutting can also give rise to hazard sources due to rotting at the sites of the cuts. In practice, the removal of roots without consequential damage to the tree is impossible. In extreme cases, the adversely affected neighbour may for example be unable to erect a garden wall or garage at the property boundary because he has damaged the roots of the tree so badly that its stability is jeopardised.
For this reason, such situations should be responded to with "negligence" when identified. The situation is problematic for those property owners who have previously tolerated the penetration of roots into their property and now wish to carry out building work that will result in damage to the plants.

AUSTRIAN STANDARDS regulate the cutting of plants
In terms of professional care, the applicable AUSTRIAN STANDARDS, e.g. ÖNORM 1120, 1121 and 1122 provide information and specify how the professional care of woody plants is to be carried out. These AUSTRIAN STANDARDS must also be applied when exercising the overhang rights. In the case of building work in the vicinity of roots, ÖNORM 1121 must be complied with, which regulates these working methods. Consequential damage resulting from a loss of stability, the occurrence of rot and fungal infestations must be taken into account.
From an expert point of view, this represents an additional disadvantage to the adversely affected property owner, who may be held responsible for the consequential damage.
There is currently no information available on which legislation takes precedence in this case.

Arbitration service and arbitration proceedings
The Chamber of Agriculture, as well as the Chamber of Notaries Public and the Chamber of Lawyers provide an arbitration service for adversely affected property owners. The significant advantage in the Chamber of Agriculture is that it does not offer a purely mediatory process in which the litigants are expected to reach a solution independently. They are advised and supported by a sworn, court certified horticultural expert in order to elaborate solution proposals.

What do the arbitration proceedings involve?
The adversely affected neighbour makes an application for initiation of arbitration proceedings to the arbitration service. A lawyer at the Chamber verifies the suitability of the application before contacting the neighbour with regard to the matter. The neighbour then accepts or declines to enter into arbitration as participation in the proceedings is on a voluntary basis.
Following a period of 3 months at the latest – calculated from the initiation of the out-of-court settlement proceedings – the neighbour has the option to file suit against the opposing party.
If the neighbour accepts to take part in the arbitration proceedings, an on-site inspection of the locale is conducted at which a lawyer and an independent expert (horticultural specialist) are present.

Prudence should be exercised in the case of litigation
In principle, arbitration proceedings are always recommendable. When entering into litigation, prudence should always be exercised, first of all because the law regards the plant as a living organism and a working method that protects the plant is stipulated. The court rulings to date clearly demonstrate that the recourses available to adversely affected property owners are limited in practice.

Note: The information contained herein is based on Austrian law. In other countries, different legal stipulations apply. In Germany, for example there are nine different “land legislations”.

Should you have a specific question on this topic, please contact us at the following e-mail address.

Manfred Putz
VIKING garden expert

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