Which leads to acorns falling from trees

Trees - neighbors' right to pruning


Summary:

Is a neighbor obliged to cut back trees that protrude over the neighboring property and lose significant amounts of leaves? Can the trees be cut back because acorns fall on the neighbour's property and cause noises? To what extent does the neighbor have to tolerate the falling of leaves on their own property through trees rooted on the neighboring property?


Brandenburg Higher Regional Court

Az: 5 U 109/13

Judgment of 08/17/2015


tenor

Upon appeal by the plaintiff, the judgment of the Frankfurt (Oder) Regional Court - Az: 13 O 48/13 - announced on October 30, 2013 - is partially amended.

1.

The defendants are sentenced as joint and several debtors to cut back the trees, a pine and two oaks located on the property of the defendant, S… 1 in St… directly on the property line to the property of the plaintiff, S… 2, so far that they are no longer than two meters, measured horizontally and at right angles from the property boundary, between the properties S… 1 and S… 2, protrude over the property boundary in the direction of the property S… 2.

The condemnation to cut back is subject to the issue of an official approval or the confirmation of the exemption from approval by the competent authority.

2.

The defendants are jointly and severally sentenced to pay the plaintiffs € 977.89 plus interest of 5 percentage points above the base rate since March 6, 2013.


Moreover, the application is dismissed.

The further appeal is rejected.

The parties each bear half of the costs of the legal dispute of both instances.

The judgment is provisionally enforceable. The defendants may avert the enforcement of the plaintiff by providing security in the amount of € 14,000 if the plaintiffs do not provide security in the same amount before the enforcement. If the appeal is rejected, the judgment under appeal is provisionally enforceable without security being provided.

The plaintiffs may avert the enforcement of the defendant because of the costs by providing security in the amount of 110% of the amount to be enforced from the judgment, if the defendants do not provide security in the amount to be enforced before the enforcement.

The amount in dispute for the appeal process is set at € 10,500.

The revision is not permitted.


reasons

The parties are the owners of neighboring properties, located on the S… in St…, the shared border is 28.50 m long. The plaintiff's property, acquired by them in 1996, is 637 square meters and is built on with a residential building, while the defendant's approximately 1,200 square meter property is used for recreational purposes. They argue about trees on the defendant's property that are level with the plaintiff's house and protrude onto the plaintiff's property, as well as the location of compost bins on the defendant's property. Because of the facts in detail, reference is first made to the factual findings in the judgment under appeal.

The regional court dismissed the lawsuit and essentially stated that the first-instance claim for the removal of the trees from §§ 1004 BGB, 39 BbgNRG was excluded due to the expiry of the deadline, a removal claim from §§ 1004, 906, 910 BGB was excluded due to the lack of significant impairment of the property situation the plaintiff out. There is no entitlement to the removal of the compost bins according to Sections 1004 (1) and 906 (1) of the German Civil Code (BGB), since the plaintiffs remained due to the not insignificant impairment of their property.

The plaintiffs oppose the judgment served on November 12, 2013 with their appeal on December 12, 2013, which they substantiated with a written statement received on February 11, 2014 after extending the deadline for appeal to February 12, 2014. With regard to the trees in the border area, they are pursuing their auxiliary request made in the first instance for the removal of the branches protruding onto their property, otherwise the requests of the first instance. They are of the opinion that they have a right to pruning the trees from the neighborly community relationship. The regional court failed to recognize that they had the right to choose between the right to self-help according to § 910 BGB and the right to removal from § 1004 BGB. It is not understandable how the assessment is made, the effects of the trees have no objectively ascertainable effects on their property. The district court wrongly assumed that a 45-year-old oak was already fully grown; Oak trees could live up to 1000 years and grow for several hundred years. Due to the height of the trees, they are exposed to unusually severe and unacceptable impairments and, due to the duty of mutual consideration, they can demand the removal of all overgrowth. It is undisputed that the canopy of leaves reduces the incidence of light on the house and property in summer, the roof drainage is impaired because leaves, acorns and pine needles clog the gutter and downpipe, rainwater overflows and runs down the house wall. You would have to clean the gutters several times in the fall. The oak leaves of one autumn fill about 50 sacks of 50 l. During the ripening of the fruit, acorns pattered day and night on the house roof and skylight, which could be heard loudly in the rooms. In storms and rain, there is a danger to life and limb due to dead branches falling, as no dead branches of the overgrowth have been removed since 1996. Installation of solar collectors is also not possible because it is uneconomical. At a fireplace show on February 12, 2014, the district chimney sweep told them to remove the hanging branches because there was a risk of damaging the exhaust pipe and thus the entire combustion system. There is no obligation to tolerate the impairments presented.

With regard to the disposal of the compost bins, they claim that the regional court violated their right to a fair hearing by rejecting the evidence from the pleading of October 10, 2013.

In the meeting on July 20, 2015, the parties agreed that the originally submitted application to set up the compost bins on the defendant's property at least 10 m away from the property line had been resolved.

Lastly, the plaintiffs request

to amend the judgment of the Frankfurt (Oder) Regional Court of October 30, 2013 and

1. To condemn the defendants as joint and several debtors, to cut back the red beech, a fir, a pine and two oaks, which are located directly on the property boundary to the property of the plaintiff S ... 2, on the map attached to the application in red, so far that they are not protrude more onto the plaintiff's property,

2. to condemn the defendants as joint and several debtors to pay the plaintiff € 19.70 plus 5% interest above the base rate since the claim was served,

3. To condemn the defendants as joint and several debtors to pay the plaintiff for pre-judicial, non-creditable legal fees € 1,101.46 plus 5% interest above the base rate since the pending litigation

The defendants request

dismiss the appeal.

They defend the judgment under appeal and claim that the fall of leaves and the amount of acorns falling are exaggerated. The repeated cleaning of the rain gutter and downpipes is an acceptable impairment, the shading is normal. There is no entitlement to cut back due to the lack of a specific risk. It would also lead to the death of the trees, as half of the foliage would be taken from them. In the absence of impairment, there is also no right to self-help according to § 910 BGB. There was no entitlement to the implementation of the compost bins, the disposal of garden waste and compost did not result in any odor development.

The Senate has raised evidence by obtaining an opinion from the experts J ... W ... as well as by inspection. With regard to the content and the result of the taking of evidence, reference is made to the decision of October 23, 2014 and the minutes of July 20, 2015.

II.

The admissible appeal is partially successful in the matter.

The amendment to the complaint, which was made by the plaintiffs in the second instance, as they are now pursuing the application originally made as an auxiliary application to cut back the trees, as the main application and expand it to include the pruning of the branches up to the property line, is relevant and also fulfilled in The rest of the requirements of § 533 ZPO.

The plaintiffs are entitled to the removal of the branches protruding over the border onto their property under Section 1004 (1) BGB against the defendants. According to Section 910 Paragraphs 1 and 2 of the German Civil Code (BGB), the property owner must ensure that overhanging branches and twigs do not impair the neighbor. The claim from Section 1004 (1) BGB is not excluded by the self-removal right from Section 910 (1) BGB (BGHZ 60, 235 (242); BGHZ 157, 33, Item 21).

According to the undisputed submission of the parties and according to the photographs submitted by the plaintiffs (annex to the brief of September 18, 2014, p. 159 ff. DA), the branches of the two oaks and a pine protruding onto the property of the plaintiffs extend over several meters the property line on the property of the plaintiff.

The plaintiffs are not obliged to tolerate the protruding branches according to Section 910 (2) of the German Civil Code (BGB). The branches represent an impairment that is not entirely negligible. There is therefore no obligation to tolerate in accordance with Section 910 (2) BGB (cf. BGHZ 157, 33, No. 20). It is true that shading alone cannot justify the claim. On the plaintiff's property, however, there is an impairment caused by falling leaves and pine needles, which is not insignificant. During the on-site visit on July 20, 2015, the Senate obtained its own impression of the size and location of the trees and the extent of the overhang of the branches on the plaintiff's property. The overhang of all the trees extends several meters above the plaintiff's ground and touches an exhaust pipe. The district chimney sweep master has therefore given the defendants the requirement to remove the branches, as they have documented in a document dated February 20, 2014. The leafy oaks, which are indisputably 10 to 12 meters high, end well above the right half of the roof as seen from the street, some branches reach the middle of the roof or grow slightly beyond it. Since the plaintiff's building was erected at a distance of three meters from the border according to the floor plan submitted with the application as an annex to the application, the content of which has not been disputed by the defendants, the overhang extends over a total of more than five Meters on the plaintiff's property.

The infestation of leaves and needles is not just minor either. The deciduous trees, the crowns of which mainly extend over the plaintiffs' property, have about three cubic meters of foliage, as the expert W ... explained at the on-site visit on July 20, 2015. This assessment confirms the claim of the plaintiffs, according to which they last filled 50 bags of foliage with a capacity of 50 liters each with the foliage of the oaks at issue. Some of the branches of the 10 to 12 meter high pine also extend several meters above the property line and naturally lead to conifer infestation there, which is no longer to be regarded as minor. The needle infestation also on the plaintiff's roof can be seen from the photos submitted (p. 159 ff.). As a result of these natural influences, the plaintiffs are increasingly burdened with cleaning the roof and gutter as well as the property.

In contrast, the Senate does not consider the impairment caused by the sound of falling acorns in autumn to be a significant impairment by the plaintiffs. The experts stated that when an oak is at full fattening, an acorn falls on a square meter every 1,350 minutes on average. This frequency and the low volume of the noise generated by the impact of acorns on the roof and window due to the personally gained impression of the Senate during the on-site visit cannot justify a significant impairment. All the more so since, according to the experts, the period of fruit ripeness is two months and within a period of ten years there are around four years in which no acorns are formed. Ultimately, however, it cannot be said whether the slight impairment caused by the falling acorns could in itself justify a claim for removal, since in any case the considerable impairment shown is given by leaves and needles.

No objections were raised by any of the parties to the convincing statements made by the experts W ..., who provided their assessment of the effects of the trees in a comprehensible and factual manner.

The claim under Section 1004 (1) BGB is also not excluded because the plaintiffs failed to meet the deadline for asserting non-compliance with the distance between the trees according to Sections 37 (1), 39 (1), 40, 61 (2) BbgNRG . The authorization to cut back the overhanging branches yourself or to request it, §§ 910, 1004 BGB, remains unaffected (Postier, Das Nachbarrecht in Brandenburg, 5th edition, § 40 Item 1.2).

The defendants did not invoke the statute of limitations for the claim under Section 1004 (1) BGB. Her submission that the claim for removal is excluded with regard to non-compliance with the period of two years since the planting according to §§ 40 sentence 1, 61 para. 2 BbgNRG, cannot be interpreted as generally referring to the raising of the objection want to appeal to the statute of limitations, since the defendants only related the submission to the time of the entry into force of the Neighboring Law Act and at the beginning of a (considerable) impairment due to growing branches did not, not even in the alternative, put forward. Rather, they take the view that there is no impairment of the plaintiff's property. In addition, the impairment due to the overgrowth, which is decisive for the claim for removal, namely the falling of the leaves and the needles, occurs again annually, which is contrary to the limitation of the claim under Section 1004 (1) BGB (cf. Palandt / Bassenge, BGB, 74th edition, § 1004 marginal number 45).

However, the plaintiffs are obliged, according to the principles of neighborly community relations, to tolerate the overhang, provided that it does not exceed a distance of two meters, measured horizontally from the property line. The provisions of §§ 905 ff. BGB and the neighboring laws of the federal states generally regulate the neighborly relationship conclusively. In individual cases, however, it may happen that, taking into account the general principle of good faith (§ 242 BGB), the legal powers and obligations are restricted. For the neighbors, this results in an obligation to show mutual consideration if an inexpensive compensation of the conflicting interests that goes beyond the legal regulations is urgently required. If these prerequisites are met, the exercise of certain rights flowing from the property may be wholly or partially inadmissible (BGH NJW-RR 2003, 1313; NJW 2003, 1392; NJW-RR 2008, 610).

So is the case here. The plaintiffs acquired the property in 1996 from the defendant's family property, right next to the 45-year-old tree population at the time, as they submit with the lawsuit. The oaks and pines already reached the property at the time, as they said themselves during the on-site visit, but would not have bothered them. You have not asserted a claim for the removal of the oaks and pines until your authorized representative has asserted their claims for removal in a letter dated October 18, 2012. In particular, the plaintiff's letter to the defendant dated July 30, 2006 only lists the red beech, which has since been removed, but not the old trees. The defendants used the property they used during their leisure time in the trust that they would not have to remove or cut back the trees, since the plaintiffs acquired the property with knowledge of the tree population.The trees standing close together act as a privacy screen, but also justify the shady location of the defendant's property - at least during the morning hours - and visually form a natural demarcation that characterizes the property from the neighboring property, which is important to the defendant. Contractual agreements on the preservation of the trees were not made with the plaintiffs when the property was acquired in view of the fact that the trees did not bother the plaintiffs. The complete pruning, especially of the oaks, up to the property line would mean that only a small part of the treetop would be preserved. Against this background, the Senate only considers a shortening of the branches protruding onto the plaintiff's property to the specified extent to be permissible in order to do justice to the plaintiff's interests in less impairment from falling leaves, but in accordance with the defendant's concerns receive. It has been taken into account that, according to the experts, the tree crown of the oaks has grown an estimated two meters further in the direction of the plaintiff's property in the last 15 years and the part of the crown remaining after the pruning does not protrude over the plaintiff's roof. Since the stability of the trees could otherwise be impaired by pruning them, the Senate also followed the experts' suggestion to preserve a smaller part of the crown in the direction of the plaintiff's property.

The removal claim is directed against both defendants. The first defendant is the owner of the disorder. The second defendant, as the co-owner of the property and a previous owner, is also actually able to influence the property until the transfer of ownership to the first defendant on July 28, 2011. The owner and the owner of a property from which a disturbance emanates as a result of a controllable natural event are then disruptors within the meaning of § 1004 BGB if the impairment is in any case indirectly due to their will and a behavior contrary to duty in the context of the management of the property and they are therefore jointly responsible for the situation that has arisen (BGH NJW 2004, 603; BGHZ 157, 33, no. 24; NZM 2005, 318, no. 21). Whether this is the case can be determined in each individual case on the basis of evaluative considerations (BGH NJW 2011, 753, Item 13). The second defendant, as the co-owner of the property and the husband of the first defendant, is able to cut the trees together with the first defendant. The condition that disturbs the plaintiff is also due to his behavior in refraining from pruning, especially since he, as the owner, did not initiate the pruning and thus contributed to the situation that has now arisen.

The condemnation to cut back is subject to the granting of a permit or the determination by the competent authority that the permit is not required. Pursuant to Section 4 (1) of the statutes on the maintenance, care and protection of trees in the city of St ... impairment of the trees protected by the statutes is prohibited. The statutes, however, exclude work on the cutback in Section 4 (2) from the prohibition in accordance with Section 4 (1) of the statutes and also provide for the possibility of approving measures that are prohibited in themselves under Section 5 (1). This does not result in the plaintiff's obligation to tolerate pursuant to Section 1004 (2) BGB. However, the conviction is subject to the granting of a special permit, since only the competent authority, not the civil courts, may decide on the permit. The granting of the exemption is to be obtained in the foreclosure procedure (BGH NZM 2005, 318). If the exemption is not granted, a compensation claim under neighboring law in accordance with Section 906, Paragraph 2, Clause 2 of the German Civil Code (BGB) may be considered.

With regard to the other trees still covered by the application, a red beech and a fir, it is undisputed that the plaintiffs are not (no longer) impaired. The red beech has been removed, the defendants have cut back the fir tree so far that it no longer protrudes up to the plaintiff's property.

The claim of the plaintiff for reimbursement of the attorney's fees incurred by the out-of-court representation is based on §§ 280 Abs. 2, 286 Abs. 1 BGB. The same applies to the costs of € 19.70 incurred as a result of the arbitration. Based on the value of 10,500 € (§ 3 ZPO), which is also to be applied for the judicial procedure, the extrajudicial business fee with a fee rate of 1.3 (No. 2300 VV RVG), here 785.20 €, the flat-rate expenses of 20 € ( No. 7002 VV RVG) and sales tax (No. 7008 VV RVG), a total of € 958.19 reimbursable.

With regard to the disposal of the compost bins, the parties unanimously declared the legal dispute to be settled at the on-site meeting on July 20, 2015. In this respect, pursuant to Section 91 a of the German Code of Civil Procedure, the costs of the legal dispute must be decided at equitable discretion, taking into account the current state of affairs and the dispute. This leads to half of the costs being borne by both parties. In this respect, the plaintiffs would have had a claim under Section 1004 of the German Civil Code (BGB) to have the container removed from the defendant as a joint user of the property if a significant odor nuisance emanating from the containers had been determined during an on-site visit and also taking into account the possible local customary odor development the container would not have complied with the requirement of neighborly consideration. The open outcome of the taking of evidence at the time of settlement justifies half of the costs.

The decision on costs is also made in accordance with Section 92 (1) ZPO. The decision on the provisional enforceability follows from §§ 708 No. 10, 711 ZPO.

The revision is not permitted because the prerequisites are not met (Section 543 (2) ZPO).

The value in dispute of a property disruption action is the plaintiff's interest in the disruption. The disadvantages incurred by the defendant are not taken into account (cf. Zöller-Herget, ZPO, 30th edition, 2014, § 3 marginal number 16 “Disturbance of property”). The focus is on the decrease in value suffered by the plaintiff as a result of the specific disruption of his property (Schneider / Herget, Disputed Value Commentary, 13th edition 2011, marginal number 1904). The Senate considers this to be adequately taken into account with € 10,000 for the impairment caused by trees and € 500 for impairment caused by the compost container.