Legal assistance with neighbour law and tree nuisance

Questioner

Good morning sir/madam, I have a question regarding a beech tree that may deprive me of sunlight in the future. Our neighbors planted a beech tree in their front garden last week (about 4 meters high with a trunk thickness of 30 cm.) We don't expect to have any problems with this in the first few years, so we don't want to make a big fuss about it. But in the long run we may experience inconvenience from this. During the division of our homes we had it included in an additional contract that; The condition of the plots in relation to each other is maintained, especially with regard to the drainage of gutter water, rainwater and faeces, by sewerage or otherwise, any beaming and anchoring and the supply of light and air, not including a prohibition on building or renovating. As previously described, we do not want to make a fuss about this now. But if we or the new owners, when we sell our house, have problems with the tree in the future, can we force them to prune/cut the tree? Is it possible that our right expires due to prescription? Thank you in advance for your response. Yours sincerely,

Lawyer

According to the rules of neighbour law, a distance of 2 metres from the property line must be maintained for trees (unless otherwise arranged at the municipal level). Make sure that your neighbours respect this distance limit in any case. Your right to demand removal of trees that are too close to the property line expires after 20 years. Furthermore, I understand from your question that you and your (current) neighbors have made contractual agreements. Please note that a contractual agreement only applies between the parties that made the agreements. If your neighbors move and fail to impose the agreements on your behalf on your new neighbors, you cannot hold the new neighbors liable if they do not adhere to the agreements. Planting the beech tree could have consequences for the incidence of light on your plot. In that case, it seems to me that the agreement on the supply of light will come under pressure. Note that if there is a breach of a contractual agreement, your right to demand compliance with the agreement has a short limitation period of only 5 years. Or if planting the beech tree is in fact contrary to the contractual agreements (so you are already experiencing light nuisance), but you do not invoke the agreement towards the neighbours for five years or more, then you can no longer invoke the contractual agreement after the period of five years has expired. You yourself indicate that the tree will not cause any nuisance in its current state. However, in a number of years the tree may be considerably larger and then cause nuisance (removing light). In legal terms, this means that there does not yet appear to be a breach of the contractual agreement, so that the limitation period does not run either. However, at the moment that you do experience light nuisance, there is a breach of contract and from that moment on the limitation period does run. You can then interrupt the limitation by demonstrably sending the neighbours a letter of interruption at least once every five years, in which you explicitly reserve the right to demand compliance with the contractual agreement. Finally, in general, action can also be taken on the basis of neighbour law against trees etc. that cause serious nuisance / inconvenience. However, the bar is high on this point and the burden of proof lies with you.

Questioner

Thank you for your quick response! The tree is approximately 5 meters from the property line, so it more than meets the 2 meter requirement. The contractual obligation/agreement is included in an easement/chain clause. It also states that both parties are required to include this in a sale. So I think this is covered. As previously stated, we are not yet bothered by it and the neighbors have promised us that they will prune the tree in due course. So fortunately we do not have to take action yet, because we do not feel like making a fuss, the tree has a lot of emotional value to the neighbors. Now in the future I want to place solar panels or a solar collector on my roof, where the tree is now taking away sunlight. Because there are no panels now, I am not bothered by it now (another place is not possible). But as soon as the panels are there, I will be bothered by it. Should I object now or only after the panels have been installed? Should the letter of interruption be sent by registered mail or can it also be sent by email? Awaiting your response, I remain.

Lawyer

The fact that the agreement is in the form of an easement in combination with a chain clause means that the limitation period is 20 years from the moment that the neighbours do and continue to do what they are not allowed to do according to the easement. I assume that your light incidence through the tree is now actually less than without the tree, so that the limitation period is already running. In this case, you can interrupt the limitation period by sending the interruption letter within 20 years after the start of the period. Interruption means that the current period is broken off, but a new period of 20 years will then start. You must be able to prove that the neighbours have received the letter of interruption, so that a registered letter is certainly preferable to an e-mail message. The best is still a letter of interruption in the form of a bailiff's writ, but this is of course more laborious and also more expensive.