action in law if the neighbor's tree is encroaching
One of the most classic legal issues regarding housing, and one that often plagues residents of single-family houses, townhouses, and townhouses, consistently causing conflicts, especially with neighbors, is the issue of "neighboring trees." These trees tend to spread their branches, branches, flowers, and fruits, causing damage to our property. Legally, what can be done about this? In this article, we'll discuss this issue.
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What can be done about tree branches and roots on our property?
This matter is directly addressed in the law, Section 1347 of the Civil and Commercial Code, which states:
"Section 1347: The owner of a piece of land may cut and retain the roots of trees encroaching on the adjacent property. If the branch extends into the adjacent property and the owner has notified the adjacent landowner to cut it within a reasonable time, the owner is entitled to cut it."
Based on the above law, we can distinguish two cases:
The first case is "Tree Roots."
If the roots of a tree on our property encroach on our property, we can cut them without notifying the owner, and the cut roots are our right. It does not belong to the tree owner.
The second case is "branches."
Before cutting, the owner must be notified within a reasonable time before cutting. Once cut, the branches belong to the tree owner, unlike in the case of tree roots.
If we cut the branches without notice, will it be considered property damage?
Supreme Court Decision No. 1846/2500 ruled on this matter that failure to notify before cutting is merely a failure to comply with conditions stipulated in the civil law. Whether or not it constitutes a criminal offense depends on the intent of each case. In this case, the circumstances alone are not sufficient to establish that the defendant intended to commit a criminal offense.
What happens if a neighbor's tree encroaches on our property?
In the case where the tree is not a branch but a tree, Section 1346 of the Civil and Commercial Code provides as follows:
Section 1346: If a tree is located on the boundary of a property, it is presumed that the two owners of the land jointly own the tree, with the fruits belonging to each owner equally. If the tree is cut down, the tree belongs to each owner equally.
Each owner may request that a tree be excavated or cut down, and the costs shall be borne equally by both parties. However, if the other owner waives his rights to the tree, the party who wishes to excavate or cut down shall bear the costs alone. If the tree is a boundary marker and finding another boundary marker is not suitable, it is not permitted for either party to request that it be excavated or cut down.
This means that if a tree (meaning the trunk) lies on the boundary line (regardless of whether it is in the middle or extends further), it shall be deemed a joint right of both owners of the land, and the fruits shall be equally owned by both sides. If it is cut down, the timber shall also be equally owned by both sides.
The question arises as to whether one party can cut down a tree. Normally, a co-owner cannot exercise rights in conflict with another co-owner. According to this principle, cutting down a tree without prior permission from the other party is prohibited. However, considering Section 1346, paragraph two, we find that:
The law prohibits cutting down trees where the tree is a boundary marker. This suggests that if the tree is not a boundary marker, it should be cut down by one party alone, unlike general co-ownership. Otherwise, the law would not be written this way, as there would be no need to use it, as co-ownership is already applicable.
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Whose property is the blossom or fruit of a neighboring tree that encroaches on?
In this regard, Section 1348 of the Civil and Commercial Code provides:
Section 1348: Fruit of a tree that naturally falls on an adjacent plot of land is presumed to belong to that plot of land.
Normally, the fruit of any tree must belong to the owner of that tree. However, in cases where the fruit falls on another person's property, the law presumes that it belongs to the owner of the land. The term "presumption" is not absolute; however, the parties may present evidence to the court to prove otherwise. For example,
the owner of the tree may present evidence proving that the fallen fruit on the neighboring land belongs to him. The law provides for this presumption to prevent disputes between neighboring landowners if the same tree is planted.
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Who is responsible for damage caused by a neighboring tree?
This is a general principle: if someone's property causes damage to another, the owner is responsible.
If the neighbor claims that the tree was not planted by him and grows naturally, he is not liable. What are the consequences?
Section 145 of the Civil and Commercial Code stipulates that trees are considered an accessory to the land. Section 144 stipulates that the owner of the property has ownership of the accessory to the property. This means that the landowner is also the owner of the tree, even if he or she did not intend to plant it, and is therefore liable for any damages resulting therefrom.
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Source: DD Property
