Lawsuit over Overhanging Branches of a 50 Year Old Birch Tree: Case Analysis and Verdict

The houses and backyards of the 2 neighbors are adjacent to each other on one side.

50 years old
In the backyard is a 50 year old birch tree. The branches of the birch partly hang over the property boundary and thus over the plaintiffs’ plot. A few years after they came to live in the street, they placed a shed in their garden that was built against the property boundary at the height of the birch.

The lawsuit revolves around the question of whether the branches of the birch hanging over the property boundary should be pruned back to the plot boundary. The plaintiffs want to install solar panels on the roof of the shed in their backyard. The overhanging branches of the birch will shade the solar panels that have yet to be installed and, along with falling branches and leaves, will reduce yields, according to neighbors.

Ownership right
The homeowners argue that their neighbor is acting unlawfully because he allegedly infringes their property rights. They ask the court to force the neighbor to have the tree in the backyard pruned within 6 weeks, whereby the overhanging branches should be pruned back to the plot boundary. A penalty of EUR 500 per day up to a maximum of EUR 25,000 should be imposed.

The plaintiffs invoke Section 5:44 of the Dutch Civil Code. In short, this article states that the owner of a plot of land overhanging the branches of trees of his neighbor has the authority to prune those branches if the neighbor has refused to do so after a warning. In principle, the homeowners therefore have the authority to remove the overhanging branches of the birch themselves or to demand that the neighbor remove them.

Die
The neighbor in turn states that the birch has been there for a very long time and has great emotional value for him, because he planted it with his now deceased wife. If the birch has to be pruned back to the plot boundary, he says, it will become unstable and may eventually fall over, blow over or die from disease. He invokes abuse of law by the plaintiffs.

The abuse of rights referred to by the neighbor may, among other things, occur if he could not reasonably have exercised the right. To answer the question of whether there was an abuse of law in this case, the court weighed the plaintiffs’ interest in the requested pruning against the neighbor’s interest in not having to prune the birch back to the plot boundary.

Legitimate interest
According to the court, the interest of the plaintiffs in achieving maximum returns with solar panels on the roof of their shed is in itself a legitimate interest. Nevertheless, the court considers that the interest of the neighbor in not having to prune the birch back to the plot boundary should weigh more heavily in this case.

fungi
The neighbor has argued in court that the pruning demanded is harmful to the birch. By pruning the birch back to the plot boundary on one side, the tree will become unstable, fall over, blow over or even die. The neighbor has substantiated this with advice from Bart Boomwerk, which states that too much pruning can cause holes in the crown of the tree, making it sensitive to gusts of wind and branches breaking out. Moreover, the advice shows that rot, fungi or diseases can develop in the birch with large pruning wounds.

50 years
The judge also finds it important that the birch tree has been in the neighbor’s backyard for 50 years. This was already present when the plaintiffs came to live next door to him in 2011 and also when they placed a shed in their backyard in 2019. Moreover, according to the judge, they themselves chose to place the shed in the back of their garden next to the overhanging birch, knowing that this creates shadow and branches and leaves fall off.

According to the judge, the fact that the efficiency of the solar panels that they now want to place on the roof of the shed in question can be influenced by the birch has partly to do with the choice made to place the shed there. The fact that the plaintiffs had no plans to install solar panels on the roof of the shed at the time of placing the shed does not change this in the opinion of the court.

Yield loss unclear
In addition, the judge states that it is unclear how large the loss of yield will be caused by the birch. In the e-mails and expert reports submitted by the homeowners, the percentages vary from 75 percent to 18 to 20 percent loss of efficiency, the outcome partly depending on the question of how the solar panels are connected, which is also a choice of the homeowners themselves.

According to the court, this does not make it clear that the loss of yield is so significant that it justifies pruning back to the plot boundary of the overhanging branches of the birch – with all possible adverse consequences.

Requirement not assigned
‘The foregoing means that the interest of the defendant in preserving the birch should outweigh the interest of the plaintiffs in achieving maximum efficiency with its solar panels, so that there is abuse of power to claim in these circumstances that the overhanging branches of the birch are pruned back to the plot boundary, “said the judge. ‘On the basis of art. 5:44 of the Dutch Civil Code, the plaintiffs’ claim for pruning cannot therefore be allowed.’

In addition, the judge states that the nuisance caused by the stream does not constitute an unlawful nuisance and that the branches should therefore be pruned up to the plot boundary. During the oral hearing of the lawsuit, the homeowners stated that the birch did not cause any nuisance before the intention to install solar panels existed.

The claim of the neighbors against their neighbor is therefore rejected. As plaintiff, they are ordered to pay the legal costs amounting to 1,282 euros.