Neighbours and problems with the garden

Neighbours can fall out for all sorts of reasons, but it is not unusual for the garden to have something to do with it. Overhanging branches, the smell of rotting fruit or a large tree casting a shadow over the enjoyment of the garden: the courts see it all. It is important to always talk things over with the neighbours and find a solution together. If that does not work, mediation can offer a solution. Otherwise, the court will have to give a ruling. This page describes the situation in the Netherlands.

Problems with boundary fences

Each neighbour owns their own garden or has the use of it. To separate the gardens from each other, a boundary fence is therefore put up. In a built-up part of a municipality (the built-up area, bebouwde kom), both neighbours have to cooperate in putting up such a dividing wall (Article 5:49 of the Dutch Civil Code, BW), which not only provides clarity but also brings privacy. Since such a dividing wall stands exactly on the boundary between their gardens, both neighbours each own half of it and must each contribute half of the costs. What is also special is that there is no prescription period at all for putting up such a dividing wall. So anyone who has had no dividing wall for more than 20 years and never asked the neighbour to help pay for putting one up does not lose the right to do so. Of course, this can only be claimed when there is no dividing wall yet.

This is different when a plot borders on public land. The government cannot be obliged to contribute half towards putting up such a dividing wall. The owner of the plot can then decide to put up a dividing wall themselves and must pay the costs themselves. The advantage, of course, is that they can make a number of choices themselves.

What is a dividing wall?

We also need to ask ourselves what such a dividing wall is. In Article 5:43 of the Dutch Civil Code (BW), the legislator provides clarity on this: "In this and the following title, a wall means any opaque partition made of stone, wood or other suitable material." Article 5:49 BW further states that in a built-up part of a municipality this concerns a dividing wall two metres high, unless a by-law or local custom provides otherwise. In practice, there are often municipal by-laws that impose different rules.

So it can be a wall of wood or stone, including gabions. The words "other suitable material" of course leave a few more options open. The explanatory notes to the law show that it could also be reinforced reed mats, frosted glass or plastic, provided of course that the partition is opaque.

Also interesting in this area is a ruling by the Supreme Court of the Netherlands (Hoge Raad) at the end of 2019 (ECLI:NL:HR:2019:1907). The question was whether a neighbour could demand that a dividing wall be put up if there was already an opaque conifer hedge, or in other words: can a conifer hedge be regarded as a dividing wall? The Supreme Court ultimately ruled that a conifer hedge is not a wall and that the hedge therefore had to make way for a real dividing wall.

What you cannot do, for example, is demand that a wooden fence be taken down to replace it with a stone wall. A fence is already a dividing wall, and it is then not possible to demand a different wall. This does not work the other way round either. Of course, the neighbours can always reach an agreement on this together, for example because they would both prefer a stone wall.

Use of the dividing wall

When a dividing wall is jointly owned (mandelig) and each neighbour owns half of it, each neighbour may also use the dividing wall. This means that the neighbour may give their part of the wall a lick of paint, but they may also, for example, attach a gutter to it or even build against it. The condition is that any beams they install only extend to half the thickness of the wall, that the wall can bear this and that the neighbour does not suffer any damage. When attaching a gutter, the rainwater may also not be discharged onto the neighbour's land.

Neighbour does not cooperate in putting up the dividing wall

In principle, the dividing wall is placed on the boundary line between the two gardens. Sometimes, however, people decide not to do this. They notice that the neighbours will not or cannot contribute, or they want to keep their freedom and would rather not make the wall jointly owned. They can then indeed simply place the wall on their own land, and that wall is then 100% their own property. Even so, this also involves risks. The strip of land behind the wall may then become the neighbours' property through prescription. This can therefore cause problems.

That is why it is also worth considering building the dividing wall exactly on the property boundary after all and still claiming the money from the neighbour. Even if no payment is made, the risk of the neighbour becoming the owner of the strip of land has been avoided. If the neighbour eventually leaves and new neighbours arrive, they will hopefully simply contribute to the maintenance and further costs.

If the neighbour can pay but refuses to because of some point of dispute, it is advisable to go to court. The court can then decide that a dividing wall is to be put up and can order the neighbour to contribute half towards it. Usually this will be enough to stir the neighbours' willingness.

Maintenance of and changes to the dividing wall

Both neighbours are responsible for the maintenance of the dividing wall. This means that they both have to contribute to the maintenance of the entire fence. If necessary, a neighbour must also be given access to the other side of the dividing wall to carry out maintenance there. This is logical: poor maintenance on one side of the wall also has consequences for the other side of the wall.

If it is not urgent, the maintenance of the dividing wall is done together. The neighbours then decide what maintenance is needed and each contribute half. Once again, consultation is very important, something the courts also attach great weight to. In urgent cases, for example when a dividing wall threatens to collapse or maintenance is really necessary but the neighbour is abroad and cannot be reached, a neighbour can carry out the maintenance on their own initiative and present half of the bill afterwards.

Consultation is also necessary when a neighbour wants to make changes to the dividing wall. This concerns, for example, a situation in which the height or thickness of the dividing wall is changed, but also painting surfaces that are also visible to the other neighbour.

Although there is such a strong focus on consultation, this does not mean that a neighbour can simply use their veto every time. Neighbours must behave reasonably towards each other and may not abuse their rights. If necessary, the court can force them to be reasonable. A neighbour who refuses to contribute to the maintenance, for example, can be ordered by the court to pay the costs after all.

When a neighbour makes unlawful changes to the dividing wall or removes it, they will of course have to pay for the repairs themselves. They will have to restore the dividing wall to its original state and bear the costs.

Problems with trees

It is not only the dividing wall that can be a source of problems, but trees too. Trees can overhang, the roots can cause damage, and then there is the waste from leaves or rotting fruit.

General rules for trees in the garden

The general rule is that everyone may plant trees in their garden, but that the neighbours may not suffer unlawful nuisance from them. The word unlawful is very important here, because neighbours do have to be able to tolerate a certain amount of nuisance from each other. Only when everyone can tolerate a little nuisance can we all enjoy our property rights.

What is or is not unlawful follows mainly from case law. All the circumstances are taken into account, such as the type of nuisance experienced, the seriousness of the nuisance, the duration of the nuisance, how easy it is to remedy the nuisance and so on.

As far as trees are concerned, there are a number of rules that must be taken into account. Precisely to prevent nuisance, trees may in any case not stand closer than 2 metres to the property boundary. For shrubs and hedges, a minimum of 50 centimetres applies. This is certainly something to bear in mind with thick-trunked trees: where they may still be far enough away today, that will probably no longer be the case within 20 years. Exceptions to this general rule are possible, however. Sometimes the local bye-laws (APV) allow local exceptions, local customs can justify it, or a neighbour can simply give permission.

Nuisance from trees in the garden

When a tree causes nuisance, you can always first check whether you can rely on the distance rules above. If this is not the case and the tree is at the required distance, it can still be unlawful nuisance. In such cases, the interests are always weighed up, but in any case the neighbour suffering the nuisance has a number of important rights.

Overhanging branches

A first example is that of overhanging branches. The problem is that you may not simply prune the overhanging branches yourself, because that would damage the neighbour's tree. You must therefore first ask the neighbour to do what is necessary. Only when they refuse to remove the branches may the neighbour suffering the nuisance prune them themselves. For reasons of evidence, it is advisable to always ask the neighbour to take action in writing, by letter or by email. Moreover, the neighbour must also be given enough time to respond. A period of six weeks is reasonable.

The branches that fall onto your land in the process you may also simply keep. You can build a work of art with them, throw them on the compost heap or keep them as a souvenir. The same applies, incidentally, to fruit that falls from the neighbour's tree onto your own land: you may keep that fruit too. However, you may not simply pick it from the tree. Of course, the neighbour can give permission for that, and then there is nothing wrong with it.

Nuisance from tree roots

Another common example is that of roots. Trees have roots that eagerly search for moisture in the ground. They do not simply let themselves be stopped by the property boundaries invented by people. In their search for water, these roots can ruin the neighbours' patio or take moisture away from the plants. Because the potential nuisance is much greater than with overhanging branches, drastic measures are possible here: the neighbour may simply cut off the roots. They may keep the roots afterwards.

Shade nuisance from trees

A problem that is mentioned more and more often is shade nuisance. Especially with the rise of solar panels, the shade of a tree can have an even greater impact and cause even greater nuisance. Whether or not a tree must be pruned or felled because of this shade nuisance is a weighing of interests that the court has to make.

Shade nuisance was central, among others, in a case heard by the District Court of Midden-Nederland at the end of 2019 (ECLI:NL:RBMNE:2019:5852). The court indicated that the neighbour had his solar panels installed when the tree was already there and that he therefore had to tolerate somewhat more nuisance than if it had been the other way round. A technical shade analysis showed that there was nevertheless a considerable obstruction of the incoming light. In addition, the court indicated that this was an urban environment where tall trees are less to be expected, and that the gardens there are small, so the shade covers a large part of the garden. The court ultimately ruled in the neighbour's favour, but found that the nuisance was not so great that the tree had to be felled. Instead, it was decided that the tree would have to be pruned.

Obstructed view due to trees

A tree can also spoil the view. Where at first you looked out from the patio over a lovely pond where herons like to rest, you now get a large tree in its place. Here too, the interests will have to be weighed up and the court will have to take all factors into account. An example of this can be found in a case before the District Court of Rotterdam (ECLI:NL:RBROT:2019:1586). In this case, a woman wanted to have a tree felled because it obstructed the view from the windows in the side wall of her house. The court pointed out that the tree was already there when the woman bought the house and that she had bought the house anyway, knowing that it would obstruct the view. Her claim was rejected.

There are also countless examples of cases in which the claim was granted. These often involve an easement (erfdienstbaarheid) of view. We return to such easements below.

Odour nuisance from the neighbours' garden

Another sore point is odour nuisance. Rotting fruit, a smelly pot-bellied pig or a generous dung heap can spoil the neighbours' enjoyment of their garden. In such a case, too, action is possible. The rule here is likewise that neighbours do not have to tolerate excessive odour nuisance. When assessing whether it is lawful or unlawful, in other words when setting the limit of tolerance, the court takes all factors into account.

In any case, odour nuisance is always subjective, and an independent investigation will have to be carried out to establish the smell nuisance as objectively as possible. With smell nuisance, this sometimes brings challenges. That is why neighbour disputes often rely on witness statements and photos of the situation causing the nuisance.

An example of the issues involved can be seen clearly in a case heard by the District Court of The Hague (ECLI:NL:RBDHA:2019:8888). Neighbours complained about odour nuisance from, among other things, scented candles, barbecue smoke and the smell of pesticides. With their claim, the complainants had included one photo of a person smoking and one photo of a smoking barbecue, but the court considered this insufficient to speak of unlawful odour nuisance. The complainants, who had previously hung a banner on the front of their house showing a gas mask and the text "HELP! We are being poisoned and smoked out by our neighbours", were moreover banned by the court from bothering their neighbours with any further complaints about smell nuisance.

The case does raise an interesting aspect that nowadays leads to complaints more and more often: neighbours who smoke in the garden. In the past, it went without saying that the smell of smoking was something you simply had to tolerate, but society's view of smoking has changed considerably since then. In practice, however, it remains difficult to take action against it. In cases where the nuisance is classed as unlawful, it often involves a combination of nuisance factors. This might be, for example, large groups gathering with a lot of noise, the smell of urine and cigarette smoke. Relying on fire safety can sometimes be successful too, but the rather simple odour nuisance from neighbours who smoke is in principle not accepted on its own and still falls within the normal limits of tolerance.

Ladder right

Sometimes a neighbour has to enter the garden next door in order to meet their obligations. This may be necessary, for example, to remove a fallen tree. It may also be necessary for work on your own home, for example to clean the windows or remove leaves from the gutter. In such cases, you have the right to go onto the neighbour's garden. This is called the ladder right (ladderrecht).

The use of the neighbour's garden must then really be necessary. So there must be no alternatives, or those alternative methods must require unreasonably high costs or interventions. However, the work itself does not necessarily have to be necessary. Painting the front of the house every year, for example, is not necessary, but it can still give rise to the ladder right every year.

Exercising the ladder right

In any case, the ladder right is temporary and must be kept to a minimum. In addition, the neighbours must be informed in good time and properly. They must be able to know the why and the when. If necessary, they can respond and ask for certain precautions to be taken. Consultation is of course very important here.

Sometimes neighbours can also validly refuse the ladder right, but they must have weighty reasons for doing so. Such a refusal can also be time-bound, so that the exercise of the ladder right is postponed to a later moment. This depends very much on the circumstances and must therefore be looked at case by case, but in any case the courts are strict and there really must be good reasons for such a refusal.

An example can be found in a case that came before the District Court of Limburg (ECLI:NL:RBLIM:2018:5436). Here, someone had refused to grant the ladder right to their neighbour for building a cavity wall. This ladder right would have been needed for four weeks, during the period of August and September. The reason for the refusal was that the neighbour had not submitted any building plans, even though these had been requested. He also objected that scaffolding would obstruct the passage to his land and argued that the wall could be bricked by hand in a less intrusive way. The court ultimately ruled that the neighbour was free to choose their own bricklaying method. The court also indicated that there was some five metres between the property boundary and the building of the refusing neighbour, leaving more than enough space. In the end, the court granted the ladder right. The refusing neighbour was given a penalty payment (dwangsom) of €1,000 for each day that he continued to unlawfully refuse his neighbour access.

Easements

Finally, we also need to discuss what are known as easements (erfdienstbaarheden). With an easement, one property serves (the "servient property") another property (the "dominant property"). This departs from the general rules mentioned above. An easement can arise in various ways (for example through prescription or by deed) and end in various ways (for example through prescription or through merger). We can also distinguish different types of easements.

Right of way (recht van overpad)

The right of way (recht van overpad) is the best-known example of an easement. It means that the owner of the dominant property may use the neighbour's property to have access from the public road to or from their property. All kinds of conditions can be attached to this right. The civil-law notary's (notaris) deed may, for example, contain agreements on maintenance, costs and so on.

Right of way (recht van weg)

The term recht van weg is often used with the same meaning as recht van overpad. The law makes no distinction between the two: in both cases it is an easement (Article 5:70 BW). Whether the route may be used on foot, by bicycle or by car follows from the deed of establishment and, if that deed says nothing about it, from local custom (Article 5:73 BW). Here, too, conditions can be attached to the easement.

Right to a view

The right to a view was mentioned earlier. With a right to a view, the owner of the dominant property has the right to keep the view. That is why the owner of the servient property cannot simply put up a building in their garden, will have to prune their trees and so on.

Gutter right

The gutter right (gootrecht) is the right to discharge water onto the neighbour's property. This often concerns rainwater that ends up on the neighbour's property via the drain. When there is a gutter right, the neighbour may not prevent this. For example, they may not simply build a dam on their property to send the water back in the direction it came from.

Read also: Neighbour disputes about property and easements, Nuisance from mess and clutter next door and Renovations and problems with the neighbours.