To whom do the trees belong on an easement
Kapprecht: And other rights for towering buildings
Case groups and problem areas from neighboring law
We can differentiate between the following case groups and problem areas:
- Relationships around the border between two properties
- Statutory claims to the establishment of easements
- Building objections
- Immission control
- Technical and other measures against immissions
Regulations on kapprecht and other rights with regard to towering buildings also belong to the first neighboring law case group of the relationships between two property boundaries. Regulations and examples for the other case groups can be found on the online subscription for construction law practice.
If individual parts of a building or another structure protrude over the border into the neighboring property (in the air, on or below the surface of the earth), the injured neighbor can in principle demand their removal for an unlimited period (Art. 641 (2) ZGB) if he does not has contractually obliged to tolerate.
However, this fact should not be confused with the border devices (e.g. fire walls) on the border.
The contract to tolerate a superstructure can be concluded informally; however, if it is also to be effective against later purchasers of the land, it must be drawn up in writing and entered in the land register as an easement (Art. 674, Paragraph 2, Civil Code). Article 674, Paragraph 3 of the Civil Code even gives the building contractor, under certain conditions, the unilateral right to demand such an easement or even the assignment of ownership of the land claimed. These cumulative requirements are:
- During the construction, the superstructure must have assumed, without gross negligence, to be entitled to do so;
- the injured neighbor did not raise an objection in good time, although the border violation was recognizable to him; the superstructure must pay compensation;
- the judicial measure must be justified in general (cost-benefit ratio).
Ownership of buildings in general
Buildings usually belong to the owner of the land on which they stand.
There are, however, various exceptions to this principle:
- So-called mobile structures, which are not brought into permanent contact with the ground, can have a special owner (Art. 677 ZGB).
- If a building right has been established, the building owner and not the landowner has ownership of the building (Art. 675 and 779 ff. ZGB).
If, on the other hand, foreign material is used for a building, the landowner automatically receives ownership of the building and consequently also of this material.
Ownership of the superstructure
However, if only part of a building rises above or below the surface of a neighboring property (e.g. because the official surveying had not yet been carried out at the time of construction), then this part of the building should also belong to the owner of the entire building, if possible. According to Art. 674, Paragraph 1 of the Civil Code, the problem is to be solved in such a way that the building owner has an easement entered in the land register, which permits the superstructure (be it by contract or on unilateral request by a judge).
Outstanding branches and roots
Basically, from the moment it is planted or sown, a plant belongs to the owner of the soil on which it stands (cf. Art. 678 (1) ZGB). The legal consequences of planting on foreign soil are determined analogously to Art. 671–673 ZGB. If there are hedges or trees exactly on the border, they are jointly owned by both neighbors, unless otherwise stipulated by cantonal law, customary for the location or agreed (cf. Art. 670 ZGB).
Plants and trees that are permanently planted cannot have a separate owner within the meaning of building rights, including the neighbors (Art. 678, Paragraph 2 of the Civil Code; we reserve the right to deviate from cantonal regulations for trees from before 1912).
If branches or roots of a plant protrude onto a neighboring property, they nonetheless remain the property of the landowner on whose soil the plant stands. If parts of a plant (e.g. branches or fruits) are cut off, they automatically belong to the owner of the plant (except for Kapprecht or Anries, see below).
In principle, every owner can ask the neighbor to remove the branches and roots protruding into his property.
It is controversial whether this also applies if these branches and roots do not cause damage. However, it is legally irrelevant whether a tree or shrub cut in this way looks beautiful or ugly.
However, if the towering branches and roots damage the neighbors to a considerable extent, the law gives them the right to self-help (the so-called right to cut) in addition to the removal action.
Art. 687 Civil Code
1 The neighbor can cut and keep protruding branches and penetrating roots if they damage his property and are not removed within a reasonable period of time in response to his complaint.
According to Art. 687 para. 1 ZGB, the neighbor can cut off the branches and roots that are seriously damaging to him, as far as they protrude over his land. However, he must first set the owner of the plant a reasonable period of time with the threat that he will otherwise exercise his right to cut.
For reasons of proof, this deadline should preferably be sent by registered mail.
If the plant owner does not cut the branches and roots himself, the neighbor may do this himself after the deadline and keep the wood for himself. After all, the affected plant owner has the opportunity to go to the judge during the set period and have the other person forbidden to cut. The owner of the neighboring property and interested parties entitled to easement on this property (e.g. holder of a right of way) are entitled to the removal action and the right of collapse, but not the tenants or lessees. You have to address your complaints and deadlines to the owner of the disturbing plant (owner, tenant or lessee). According to Art. 687 Paragraph 3 ZGB, there is no right of capping between forest properties.
3 These regulations do not apply to forest plots that are adjacent to one another.
In some cantons, based on Art. 688, this also applies to fruit-bearing trees.
Art. 688 ZGB
b. Cantonal regulations
The cantons are empowered to stipulate certain distances from the neighboring property for plantings, depending on the type of property and plants, or to oblige the landowner to allow branches or roots of fruit-bearing trees to reach over and, in such cases, to regulate or cancel the watering.
Anyone who, as a neighbor, tolerates the protrusion of branches on his cultivated or built-up soil, may take the fruits growing on the protruding piece without compensation (Art. 687 Para. 2 ZGB).
2 If a landowner tolerates the protrusion of branches on built or built over ground, he has a right to the fruits growing on them (anries).
This right to claim does not apply in the forest or for branches that tower above the road (where the fruits belong to the owner). It also does not apply in the cantons that have legally repealed it.
Limit distances for plants
All cantons have established regulations on the limit distances between plants in their legislation. This affects not only the plants planted by human hands, but also the wildlings.
Different spacing rules usually apply to forest trees, fruit trees, bushes and hedges, as well as to forest properties, fields, gardens, roads, etc.
In some cantons, however, the neighbor has to tolerate a plant that is too close to the border if he does not request its removal within a certain time after planting. The problem is that such trees and bushes often only start to disturb after this period has long expired. The neighbors never lose the right to defend themselves against protruding branches and roots, so that there is a certain protection against the unrestricted growth of trees near the border.
Observance of the boundary distances between plants is mandatory even if the neighbor does not claim damage to his property. Conversely, the neighbor can also request the removal or cutting back of flowers and bushes that are within the boundary distance, provided that they cause excessive impairment of the neighboring property (e.g. by casting shadows) (Art. 679 and 684 ZGB).
Deviations from the rules described must be publicly notarized and entered as easements in the land register in order to also be effective vis-à-vis the legal successors of the contracting parties (and e.g. later servants). Such 'horticultural easements' are often set up in the case of overbuilding.
If this is done skillfully (with the involvement of gardeners and lawyers), a lot of neighborly disputes can be avoided. But if you allow each other to plant whatever you want in 'green' euphoria, you will be living in a forest instead of a garden landscape within 15 years.
Although condominium shares are also 'land' in the technical sense, the neighboring legal regulations with regard to overhang, capping rights, anries and border spacing apply in the relationship between two condominiums Not. Rather, condominium law is based on the usage and administrative regulations applicable there.
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