Legal assistance with neighborhood disputes | Rechtswinkel.nl

Questioner

Twelve years ago I had a fence put up between the neighbours and me. The then neighbour agreed to this but did not want to pay. I then put a clematis along it, also in consultation with the neighbour, because it would grow through the openings in the fence. After a few years a new neighbour came and I also discussed the clematis with her. If she did not want it, I would take measures. But this neighbour thought it was beautiful and wanted me to leave it. We agreed that I would cut away the growing shoots on top of the fence and as far as I could reach her. I also do this at least twice a week because this clematis grows quickly. However, I cannot reach far over the fence and the shoots continue to grow. Because my neighbor has not maintained her garden for at least 4 years in terms of weeds and pruning (unfortunately she has had a lot of trouble with that and also with some ivy that she had planted along the fence that grew everywhere), a number of shoots from the clematis have grown into her plants. Last week she pruned everything in her garden but also cut the clematis so that on my side the entire clematis has withered. I asked her why she didn't consult or just cut off the grown shoots?? Also asked if she doesn't want the clematis anymore because then I will take measures. I get no answer.......what should and can I do now???? Does she have the right to just cut the clematis to pieces??

Lawyer

Your neighbor should first urge you to remove the overhanging clematis before she does it herself. What your neighbor has done is not allowed. Article 5:44 of the Civil Code (BW) contains a provision that provides the legal rules for your situation. Article 5:44 BW states: 'If a neighbour whose plants overhang another person's property, despite reminders from the owner of this property, fails to remove the overhanging property, the latter owner may unilaterally cut away the overhanging property and appropriate it' In short, your neighbour may only remove the overhanging clematis herself if she has first urged you to remove the clematis yourself. The reason for this is that 'cutting away plantings' (read: pruning the clematis) requires knowledge and care. Pruning overhanging plantings incorrectly can have major consequences. The owners of the plantings must therefore first be given the opportunity to prune them themselves in a careful manner. From your question I understand that your neighbour did not consult with you at all about removing the overhanging clematis, while this should have been done. That the pruning took place without the necessary knowledge and care is evident from the fact that your clematis is now completely wilted. Removing your clematis without notice is unlawful under these circumstances (as shown by various court rulings). You can therefore ask your neighbour to compensate you for the damage you have suffered. NB 1 If your neighbour has 'only' cut away the roots of your clematis, then in principle this is allowed again without a notice (based on article 5:44 paragraph 2 BW). NB 2 It is not permitted to have trees, shrubs or hedges within 2 metres of the property boundary without permission from the neighbours according to article 5:42 BW. A clematis is a climbing plant and therefore does not fall under the scope of article 5:42 BW. Furthermore, the neighbours have given permission to keep the clematis. Removal of the entire clematis on your side can therefore not be demanded by the neighbours.