Trees and common property boundaries

29/07/2022

A common bone of contention between neighbours is the planting of trees or shrubs close to a fence that runs along a common property border. However, mere dislike of whatever a neighbour is doing in their garden may not be enough to bring about a remedy. When and how can the trees be removed? And are there other options?

The reasonable cause condition

Being successful in seeking to compel your neighbour either to refrain from planting trees or to remove trees already planted/growing is subject to the existence of Reasonable Cause. Forcing a landowner to remove a planted tree is a significant interference with his/her property right.

Reasonable Cause can take many forms in practice and each situation must be assessed on its own merits. There may be a reasonable fear that trees will overshadow your land in the future in a way that is disproportionate to local circumstances. E.g., if your plot of land is already overshadowed by other trees, even your own, the reasonable cause criterion would not be met.

Reasonable grounds could be in a situation when trees planted close to the boundary or their roots could drain moisture from the crops planted on a neighbouring plot of land in the future. The roots of certain trees could in time undermine the structure of nearby buildings - in this case reasonable grounds will be given.

Conversely, the defence of the tree-planting neighbour cannot be based purely on an abstract claim that he/she wishes to protect his/her privacy using the trees. He/she would first have to show that the other neighbour is invading his privacy.
Different trees, different distances

If the reasonable cause requirement is met, it is then time to determine what kind of tree is concerned and what can be claimed. The Czech Civil Code sets out the criteria for permissible distances. This may be laid down by other legislation, or it may result from local custom (e.g. it could be that in a certain village everyone has been planting trees right at the property boundary since time immemorial). Where neither situation applies, the law sets the minimum permissible distance in different ways: for trees that usually grow over 3 metres in height, the minimum permissible distance from the common boundary is 3 metres. For all other trees (including shrubs) the minimum permissible distance is 1.5 metres.

Injunctions to restrain the planting of trees or their removal can be sought at the Court. The action is precautionary in nature and in relation to Reasonable Cause it is sufficient to show that the protected interest is threatened; it is not necessary that the trees already disturb it. If a permit from the Nature Conservation Authority is required for the removal of the trees, the Court will require it in the course of the action.

Exceptions and alternative defences

The removal of trees that were planted before 1 January 2014 cannot be claimed - the previous Czech Civil Code did not contain a provision similar to Section 1017 of the current Civil Code. At the same time, the law provides that the abovementioned civil action does not apply to situations where the trees form a forest or an orchard, and where a particular tree is protected by a specific legal regulation. The removal of trees or shrubs is also excluded if they form a barrier between plots of land.

A hedge made up of yew trees may already form a barrier once it has been planted, which may, without more, preclude a possible defence in the manner described above. If such a hedge infringes your property rights, e.g. by shading the land or if leaves fall from it onto your land, this may constitute immission. To make your neighbour to prevent these "immisions" from entering your garden, the immissions must be disproportionate to the local conditions and at the same time substantially restrict your use of the garden. Therefore, you cannot successfully sue your neighbour with a few leaves that fell into your garden.

If there can be no reasonable agreement with the neighbour and you do not intend to accept the problematic situation, it is advisable to engage the services of a solicitor at the outset. If the dispute ends up at the Court, it is advisable to have a solicitor there from the outset to secure you a better position. At the same time, their efforts can help prevent the emergence of a regular "neighbour dispute", which is not pleasant to anyone.