What to do if the roots from the neighboring property spread too much? Can you just cap them? Who is liable for any damage?
Time and again, courts have to deal with neighborly disputes. Not infrequently, this involves tree roots from the neighboring property. Sometimes they lead to damage, sometimes they restrict the use of the property and other times they were allegedly cut illegally. If you read through all the court decisions, you can almost despair, because afterwards you are usually just as smart as before.
We have taken a closer look at the topic and try to make the legal situation understandable for you.
What to do if the tree on the neighboring property is too big?
If you plant a tree too close to a property line, sooner or later it will also take over the neighboring property. It is not only the roots that spread underground beyond the property boundaries. The crown of the tree can also protrude onto the neighbor's property. Section 910 of the German Civil Code (BGB) specifies how to proceed here:
§ 910 Overhang
(1) A property owner may cut off and keep roots of a tree or shrub that have encroached from a neighboring property. The same applies to protruding branches if the owner has given the owner of the neighboring property a reasonable deadline for removal and the removal does not take place within the deadline.
(2) The owner does not have this right if the roots or branches do not interfere with the use of the property.
The BGB therefore states that you may only remove branches and twigs if you have given the tree owner a reasonable period of time to remove them and he allows this to pass. The infructescence, growth stages and breeding seasons of birds play a crucial role in assessing a reasonable period.
You can cut off tree roots from neighboring properties without prior consultation with the tree owner, but there are also restrictions here. On the one hand, you only have this right if the root impairs the use of your property. Second, you mustalso consider the growth phases of the tree here.
Tip: Alternatively, according to § 1004 BGB, you can also ask your neighbor to remove the disturbing roots. A reasonable deadline should also be set here.
Who pays for damage to the tree by cutting off the roots?
The roots of a tree perform some important functions. On the one hand, they anchor the tree in the ground and thus serve to ensure stability. On the other hand, you supply the entire plant with water and nutrients. It also produces growth hormones. Depending on how much you cut off from the root, the tree experiences a greater or lesser degree of impairment. A small piece of root is unlikely to have a major impact on the tree. However, if you cut a large, strong root, there is a risk of serious damage. On the one hand, he could lose his stability. On the other hand, fungi can penetrate through the resulting wound. In the worst case, this would lead to the death of the tree.
But who pays for it if the tree is damaged by root cutting? The situation here is actually quite clear. Section 910 BGB grants you the right to cut the root. However, the owner of the tree is responsible for professional wound care to avoid fungal infestation and damage to the tree. However, he can only initiate appropriate measures if he is informed about the capping. Failure to notify him of the cutting may result in damage to the tree.
Who pays for damage caused by tree roots on the neighboring property?
Depending on the tree species, the roots can be enormously powerful and cause damage to the neighboring property. Raised paths and damaged lines and pipes appear quite harmless. However, if the roots block the pipes, considerable damage can be caused by backwater. However, they can also cause considerable damage to buildings and cause lasting damage to the building fabric. At first glance, it seems logical that the tree owner can be held liable for all of this damage. And § 1004 BGB also sees it this way:
§ 1004 Claim for elimination and injunctive relief
(1) If property is impaired in a manner other than confiscation or withholding of possession, the owner may demand that the disruptor remove the impairment. If further impairments are to be feared, the owner can injunctive reliefsue.
(2) The claim is excluded if the owner is obliged to tolerate.
In this case, the disturber is the tree owner. If the tree roots cause damage, that is a nuisance that needs to be removed. So the tree owner can be held liable for any damage caused by the tree roots.
So much for the theory. Unfortunately, in practice it is a bit more complicated. On the one hand, it must be proven that the damage was really caused by the tree in question - a root report usually provides clarity here. On the other hand, the tree owner must be given the opportunity to repair the damage. Again, a reasonable deadline must be set. This depends on the urgency of repairing the damage. For example, a damaged pipe or structure needs repairing more urgently than a raised path.
If the tree owner, as the indirect cause of the damage, does not have the opportunity to remedy the defect, he may not be obliged or only partially obliged to reimburse the costs for the repair. Another reason for exclusion for the tree owner to assume the costs is possible contributory negligence on the part of the injured party. This is the case, for example, if you build a terrace right next to a tree plot without having taken appropriate safety measures beforehand. If the roots then damage the terrace, the tree owner usually does not have to pay for the damage.
Summary
If trees spread to such an extent that their roots restrict use on the neighboring property or cause damage, the tree owner is generally responsible for removing them. In the course of self-help, the injured party can cut the roots themselves, but should seek talks with the neighbors so that they can take measures to protect themselves. If this is not done, it can be expensive under certain circumstances if the tree is later damaged by cutting the roots (e.g. due to fungal infestation).
If the roots from the neighboring property cause damage on your own property, the tree owner should be informed immediately. If he has not repaired the damage after a reasonable period of time, the injured party may take over and charge the tree owner for the costs. Under no circumstances should those who have been damaged start repairing them from the start and only inform the tree owner of the damage afterwards. This could add to thatresult in the costs not being reimbursed. A reimbursement of costs can also be excluded if the injured party is jointly responsible for the damage.