Removing property boundaries and hedges: Your rights


Questioner

Hello, I have a question about the following situation. We own a house and on our own land (all the trunks are on our property) there is a conifer hedge of approximately 80 cm wide. The property boundary runs on the outside of the hedge, on the side of the neighbours. The hedge has been there for more than 20 years. We want to remove the hedge and place a fence on the property boundary, which will make our garden 80 cm wider. Our neighbours state that the property boundary has been moved to the place where the trunks are. Therefore, they state, the hedge has become common property and we are not allowed to remove the hedge. Is our statement correct, namely that the hedge is our property and that the limitation period does not apply to land under the hedge? And can we remove the hedge without further permission from the neighbours?

Lawyer

Article 5:62 of the Civil Code states that a wall, fence or hedge can only be shared if the boundary of the properties runs underneath it in the lengthwise direction. It therefore does not seem to me that the core of the hedge runs in such a way that there can be a question of shared ownership. Now that, based on your description, the hedge is on your land / is not communal, you may remove it. Another thing that could happen is that your neighbours claim that you have lost ownership of the 80 cm strip of land by prescription, so that the property line is now where the conifers are. You may still remove the conifers, but then you may only put up a fence (without consulting the neighbours) where the conifers are now... I cannot properly assess whether your neighbours could rightly rely on prescription. This could be the case if they took possession of the 80-centimetre strip of land more than 20 years ago and have held it ever since. I do not read in your question that this is the case. After all, the neighbours do not seem to have cut back the hedge on their side in order to take possession of the 80-centimetre strip.

Questioner

Many thanks for the quick response. I have an additional question about the prescription and a (not yet asked) question about cadastral surveying of the property boundary. My additional question: the situation with the conifer hedge is such that the trunks of the hedge are about 40 cm from the property boundary. However, the hedge is 80 cm wide in total (on both sides the branches are about 40 cm wide from the trunk), which means that the end of the branches are more or less on the property boundary. I assume that, because the neighbours have not pruned the hedge for 20 years, they cannot claim that the 40 cm between the trunks of the hedge and the property boundary has now expired, because they have not actually used this land? In other words, I can remove the conifer hedge and place a fence 40 cm further than where the trunks are now? Apart from that, I have a second question. I want to ask the land registry to have the property boundary measured and anchors hammered in, so that there can be no discussion about where the property boundary runs. Can a neighbor refuse this, for example by not giving me access to his side of the hedge?

Lawyer

Correct. If the trunks of the conifers are on your land and have always been there, there is no question of a shared hedge and you may remove the hedge that is on your land. You may then unilaterally place a new fence against the property boundary. If you want to place the fence on the property boundary, your neighbours must cooperate and the costs must be shared. You will then have to try to reach agreement on the nature and material of the property boundary and the costs of realisation. If this does not work, it is ultimately up to the judge to cut this knot. Measuring the boundary of the property is pointless if you and your neighbours disagree about the course of the boundary. If there is a dispute about this, it will first have to be resolved, after which the land registry can, at the request and instruction of both parties, set out the boundary, incorporate it into a drawing and set it out in 'the field'.

Questioner

Thanks again for the response! A final clarification would help me with the measurement of the property boundary. I just called the land registry about hiring a surveyor. They told me that the land registry can reconstruct a boundary if I only give the order for it. In other words, I do not need permission from my neighbor to carry out a boundary reconstruction. I can also give the order to have anchors driven in myself. How should I view this response from the Land Registry in relation to the above answer?

Lawyer

The land registry will then measure a boundary as it runs on the basis of existing measurement points or as you indicate that it runs. Whether this is also the legal ownership boundary can only be determined by you and your neighbors together or by the court if you and your neighbors have and continue to have a dispute about it. You have indicated that your neighbours are of the opinion that the boundary has been moved to the place where the trunks are. This argument is not strong in this case, but this does not alter the fact that under circumstances as a result of prescription, for example, a property boundary can indeed shift.

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