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Old 21.08.2010, 19:07
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Neighbour and tree.

I have a large tree in my garden that has been there for at least 17 years and gives much needed shade in the afternoon. My neighbours ex-wife complained that it shaded their garden and we came to a compromise in which every December I had the tree trimmed back as much as possible.This has worked for the last 5 years. Today the man (his wife has left) has said he is going to take me to court if I don't cut it down. It is not the regulated 3 meters from his fence (It's 2m 60cm) What are my rights?
He is the type to stick to his word. He has already taken a neighbour to court over an aviary she had in her garden. Also 2 other neighbours have moved because of his behaviour and the village council are also aware of him. I'm just hoping that because I have tried to compromise that court will come down in my favour
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Old 21.08.2010, 19:13
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Re: Neighbour and tree.

Depends how much you are prepared to pay to keep the tree - legal costs, arborist advice surveyor (to check the fence lines and measure the distance to the tree)...

I'd plant something immediately, that is within the legal limit, that is going to grow fast, big and bushy... and then fight over the tree later...
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Old 21.08.2010, 20:00
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Re: Neighbour and tree.

Wow. What an ass of a neighbor. I presume he is not throwing stones in a glass house.. that is to say there is nothing wrong with his property or.. social responsibilities?

Also, what got him fired up for him to bring up the tree now? (Since wify has left)

Have you tried for another compromise regarding the tree being kept? Otherwise, as swisspea has cleverly thought of, offer your alternatives when the tree is gone. Bamboo is a great one for immediate notice.

CK
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Old 21.08.2010, 20:13
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Re: Neighbour and tree.

Yep, bamboo is a winner. Just be sure to get the black stemmed varieties as they do not spread so badly.
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Old 21.08.2010, 20:20
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Re: Neighbour and tree.

If he hasn't compained about the tree officially within four years of moving in, I think he basically "grants it the right to stay". That's what the court told an annoying neighbour of my father's. That was in Canton Aargau though.
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Old 21.08.2010, 20:26
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Re: Neighbour and tree.

The tree has been there 17years, he's been happy with it for 5years. The big argument against him is why change your mind now
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Old 21.08.2010, 20:34
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Re: Neighbour and tree.

I'm in Aargau. You give me hope. Thank you!
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Old 21.08.2010, 21:13
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Re: Neighbour and tree.

Well, we have an almost exact opposite situation - we have a big sycamore tree in our garden which has been there forever (planted when the houses were built in the seventies). It does shade our garden but we hate it because it throws seeds and leaves absolutely every where every year. Also we'd actually like a bit of sun in our garden!

Our tree is planted right in the corner where four gardens meet. Whilst it's within our border it's totally not legal in terms of distance from the border (it's literally right in the corner). So we asked whether we could take the tree down (on the grounds it's not legal anyway). And the answer is absolutely not. Because it's trunk is over a certain diameter it's basically protected by the Gemeinde and they won't give us permission to get rid of it unless it is actually diseased or dangerous.

This is one situation though where every gemeinde is going to be different. But I think the length of time the tree has been there will certainly go in your favour. I reckon your neighbour would probably lose if it got to court but I don't think it would get that far.
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Old 21.08.2010, 21:17
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Re: Neighbour and tree.

The poison tree, William Blake.


I was angry with my friend:
I told my wrath, my wrath did end.
I was angry with my foe:
I told it not, my wrath did grow.

And I watered it in fears
Night and morning with my tears,
And I sunned it with smiles
And with soft deceitful wiles.

And it grew both day and night,
Till it bore an apple bright,
And my foe beheld it shine,
And he knew that it was mine -

And into my garden stole
When the night had veiled the pole;
In the morning, glad, I see
My foe outstretched beneath the tree.
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Old 21.08.2010, 21:18
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Re: Neighbour and tree.

Here's where the Swiss love of the status quo will probably work for you, yes, as wattsli says, there is a general notion of "the tree has ALWAYS been there, you knew the tree was there before you moved in, so unless a family of baboons has recently moved in, why must the tree suddenly go?". The guy who tried to sue my father over the tree used his legal insurance (you can pay a kind of insurance to back you up when you need a lawyer) for this inanity, the tree was WAY past the border in our case, plus he wanted "something done" about the birches we have - they are approx. forty metres away from his house, but Mister likes to sunbathe. His house was built about 20 years after my dad's, the trees he doesn't like were planted 15 to 20 years before his house even existed, it's all very foolish. Every village has at least one of these people who take random dislikes to things beyond their control.
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Old 21.08.2010, 22:33
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Re: Neighbour and tree.

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I have a large tree in my garden that has been there for at least 17 years and gives much needed shade in the afternoon. My neighbours ex-wife complained that it shaded their garden and we came to a compromise in which every December I had the tree trimmed back as much as possible.This has worked for the last 5 years. Today the man (his wife has left) has said he is going to take me to court if I don't cut it down. It is not the regulated 3 meters from his fence (It's 2m 60cm) What are my rights?
He is the type to stick to his word. He has already taken a neighbour to court over an aviary she had in her garden. Also 2 other neighbours have moved because of his behaviour and the village council are also aware of him. I'm just hoping that because I have tried to compromise that court will come down in my favour
I'd recommend that you buy legal insurance as it sounds like you are going to need it. Have you tried called anyone from the Gemeinde to look at your tree (the local forester) and see if it can be cut back sufficiently to satisfy your neighbour or is it just planted too close in the first place?

One of my neighbours was also complaining about his neighbour's trees shading his property so he took matters in his own hands and cut the trees. Now the neighbour(tree owner) is suing him. He is angry and he told me he can afford to fight as he has legal insurance. Will be interesting to hear what happens.
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Old 21.08.2010, 22:56
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Re: Neighbour and tree.

Art. 688 of the Civil Code (Zivilgesetzbuch) states that the cantons are responsible for legislation regarding the distances that plants (and trees) should be from neighbouring land.

The Hauseigentümerverband writes:


"In den kantonalen Einführungsgesetzen zum Zivilgesetzbuch finden sich weitere Bestimmungen über Bäume und Sträucher an der Grundstücksgrenze. Die Kantone regeln namentlich die zulässigen Grenzabstände und Maximalhöhen von Pflanzen, die Pflicht bestimmte Sträucher unter der Schere zu halten sowie den Anspruch auf Beseitigung der zu nahe an der Grenze stehenden Pflanzen. Dabei ist zu beachten, dass der Beseitigungsanspruch in den meisten Kantonen der Verjährung unterliegt, d.h. nur innerhalb einer bestimmten Frist durchgesetzt werden kann."

In other words there is a time period after which it would no longer be possible to enforce the regulations if the status quo has been accepted to date.

However... in this article in the "Beobachter it says that while some cantons have this time period (ZH = 5 years), some don't and Aargau is one of them.

So, I'm afraid you have some contradictory information here and you may want to get some legal advice. From the way you described the situation you sound as though you own your house. Are you a member of the Hauseigentümerverband? They also give free legal advice, so it may be worth becoming a member if you are not already.
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Old 22.08.2010, 11:55
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Re: Neighbour and tree.

Best wishes for finding an amicable settlement, although it sounds like your neighbour is more interested in spoiling for a fight than in the tree.

In the worst case scenario, wouldn't it be cheaper to have the tree professionally moved 40cm, than to bring in the lawyers?
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Old 22.08.2010, 19:24
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Re: Neighbour and tree.

Yes I think that might be a good idea to move it 50 cms.

As many trees are protected, would it be possible to ask the forestry department to protect it? Have to be quick though before he gets the court order!
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Old 22.08.2010, 19:30
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Re: Neighbour and tree.

Do check your Gemeinde laws. In mine, you're not allowed to cut down a tree taller than 3m, without their permission.

If the man has been to court a few times, even successfully, over trivial matters, he might find that the judges become less sympathetic. I've heard of rulings, in neighbourhood disputes, where the litigant won... but the judgement that was handed down to him made him regret ever starting legal action. That was in Solothurn.
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Old 22.08.2010, 19:37
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Re: Neighbour and tree.

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So we asked whether we could take the tree down (on the grounds it's not legal anyway). And the answer is absolutely not. Because it's trunk is over a certain diameter it's basically protected by the Gemeinde and they won't give us permission to get rid of it unless it is actually diseased or dangerous.
Before you do anything, I would contact your gemeinde, like wattsli1 suggests.
We have similar rules in my commune. I think the rule is you can't cut anything down which is over 30cms diameter without approval from the commune. The communes can play a useful role sometimes in resolving neighbour disputes like this.
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Old 22.08.2010, 22:27
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Re: Neighbour and tree.

This is really crazy. Your neighbor needs to leave and take a vacation. Why don't you drop some vacation flyers in his mailbox and while he's gone set up a blog about how you love nature and would love to keep your tree. From my understanding of nature in Switzerland, and the town knowing of your neighbor, your gemeinde will most likely take your side.
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Old 23.08.2010, 11:10
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Re: Neighbour and tree.

Like other have said, get the details from your commune/geminde.

Just to add, if the tree has been there 17 years, you may need to check what, if any, the regulations were at the time it was planted. This could have a bearing.

For example, two neighbors are now arguing about a wall. One wants to build one, but commune told them it has to be x meters from property and y meters tall. This neigbor quickly points to neighbors wall, which is clearly closer than x meters from property. The commune got legal advice that this older wall is 'ok' and doesn't have to be torn down, ie sort of grandfathered as it had been there so long and before the current regulations existed.

Also, we had an 'illegal' tree, prohibited species, but still had to go through the rules and permission to get it cut down. Just because something is out the rules today, it might have been ok in the past, and still this does not exempt you to following the rules today to get rid of it.
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Old 23.08.2010, 11:20
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Re: Neighbour and tree.

Just a thought?
a. How old is the tree?
b. What were the legal parameters surrounding 'distance to fence' at the time?

Does this help build an argument?


Also, perhaps a 'tree surgeon' (or whatever they call them here) could thin out the internal brances allowing more light through.


Your neighbour is a D1CK......... salt his lawn* at night.

(*don't do this)
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Old 23.08.2010, 11:39
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Re: Neighbour and tree.

It's great fun isn't it? I live in Vaud and have had a similar problem with a neighbour complaining about leaves from my tree falling into his swimming pool (the edge of which is about 0.5 m from my garden border). My tree has had its present height for more than 10 years, so in Vaud it's legal whatever the height, unless the neighbour can prove real problems (which does not include flippin' leaves falling into his pool). Anyway, he has now more problems with his new neighbour on the other side (a lawyer) who has very loud parties into the early morning; my neighbour requested that I should sign a petition, and you can imagine my reply!
 




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