On April 1, 2023, the Civil Code was amended, significantly changing the handling of tree branches extending onto neighboring property (so-called “encroaching branches”). This amendment aims to simplify the resolution of disputes involving tree branches that cross property boundaries and reduce the burden on landowners (property owners). Overhanging branches have long been a common source of neighborhood disputes, and particularly in cases where branches from a neighboring property encroach onto one's own property, the legal procedures were previously complex and cumbersome. This article will clarify the differences between the pre- and post-amendment provisions of the Civil Code, summarize the key points of the amendments, and explain the measures landowners should take and preventive steps to avoid such issues.
1. Previous treatment of overhanging branches under the Civil Code
Under the previous Civil Code (Article 233 of the old Civil Code), even if branches of a tree extended across the boundary line from neighboring land, the owner of the land on which the branches were overhanging could not arbitrarily cut them off. If branches were encroaching, the landowner could only request the tree owner to remove the branches. If the tree owner failed to comply, the landowner would have to file a lawsuit, obtain a court order to remove the branches, and then enforce the order through compulsory execution. On the other hand, if the roots of a tree on neighboring land encroached across the boundary, the landowner was permitted to cut them off themselves. Since the responses differed depending on whether it was a branch or a root, in cases of branch encroachment, there was a possibility that litigation would have to be filed every time, and the remedial procedures were criticized as being excessively burdensome. In reality, many cases were resolved through negotiations between neighbors, but legally, the landowner had no clear authority to remove the branches on their own, and resolving disputes required significant time and effort before the amendment.
23. Key points of the Civil Code amendments enacted in April 2023 (summary of relevant provisions)
The Civil Code amendments enacted in April 2023 revised the provisions regarding encroaching branches (Civil Code Article 233), establishing a new right for landowners to remove encroaching branches under certain circumstances. The key points of the revised Civil Code Article 233 are as follows:
- Maintenance of the principle: Even if branches extend onto adjacent land, the principle that “the owner of the tree must first be requested to remove the branches” remains unchanged. Therefore, even if you discover overhanging branches, you cannot immediately cut them yourself; you must first request the owner of the adjacent land to take action.
- Cases where the landowner may cut branches: As an exception to the above principle, if any of the following conditions are met, the landowner may now cut overhanging branches themselves (amended Civil Code Article 233, Paragraph 3). The amended law lists three cases where self-help is permitted. If any of these conditions are met, the landowner may cut overhanging branches without going through court proceedings. For example, in case ①, if the other party does not cut the branches even after waiting for approximately two weeks after the demand, it is assumed that the landowner may cut the branches themselves. In case ②, it is not immediately permissible to cut the branches simply because the owner is unknown. This condition is only met if, after conducting thorough investigations such as checking the real estate registration records or resident registration records, the owner or location cannot be identified. In case ③, since it is an emergency situation with no time to spare, removal of the branches is permitted without prior notice.
- If the branches are not removed after notice – Even after urging the tree owner to cut the overhanging branches, if the branches are not removed within a reasonable period of time.
- If the tree owner is unknown or cannot be contacted – If the tree owner is unknown or their location cannot be determined and contact cannot be made.
- In cases of urgent circumstances – When there are urgent and pressing circumstances, such as when branches are about to break off due to a typhoon and fall onto neighboring property.
- Response to shared trees: Provisions have also been established to address cases where trees are shared by multiple people. Under the revised Civil Code Article 233, Paragraph 2, when trees are shared, each co-owner may remove overhanging branches on their own. This means that even in situations where the consent of all co-owners was previously required, each co-owner may now decide to remove overhanging branches on their own (with the consent of one other co-owner, a third party may also perform the removal). From the landowner's perspective, this provides the advantage of smoother handling even when trees on neighboring properties are jointly owned.
- Expansion of the right to use adjacent land: The right to enter adjacent land for the purpose of cutting branches has also been amended. Under the revised Civil Code Article 209, it is explicitly stated that the use of adjacent land is permitted to the extent necessary for the purpose of removing overhanging branches. However, this use is limited to the absolute minimum necessary, and provisions have been made to ensure that, for example, entry into the interior of a residential property without the consent of the resident is not permitted. The fact that situations where unauthorized entry onto neighboring land is legally permitted has been explicitly stated makes it easier to perform the physical work of pruning branches.
- Considerations regarding cost allocation: Article 233 of the amended Civil Code does not directly address the allocation of costs for removing overhanging branches. However, according to the prevailing interpretation, the fact that branches extend onto another property constitutes a violation of property rights, and the landowner (the party whose property is encroached upon) is deemed to have assumed the obligation to manage the branches that they should have originally borne. Therefore, the costs of removal can generally be claimed from the owner of the tree (based on the general principles of Article 703 of the Civil Code [unjust enrichment] and Article 709 [tort liability]). In other words, even if the landowner pays for the removal of branches at their own expense, they may still be able to seek reimbursement from the owner of the neighboring tree. However, in practice, depending on the circumstances and negotiations with the other party, there may be cases where the costs are shared. Therefore, caution is necessary when seeking reimbursement for such costs.
The above is an overview of the new rules regarding overhanging branches under the revised Civil Code, centered on Article 233. The revision has introduced a flexible approach where the “principle is negotiation, but self-help is permitted under certain circumstances,” enabling landowners to more swiftly address infringements of their rights compared to the previous system.
3. Actions and Considerations Required of Landowners Under the Revision
While the Civil Code amendments have expanded the means available to address overhanging branches, landowners must be aware of the necessary measures and precautions to appropriately exercise their new rights. The following points summarize key considerations and risk management strategies when exercising self-help.
- Ensure that the requirements for self-help are met: To cut branches yourself, you must meet at least one of the three conditions mentioned above. Therefore, upon discovering encroaching branches, it is important to first formally notify the other party (the tree owner) and keep a record of the notification. Use certified mail or similar means to notify the other party with a statement such as “Please trim the encroaching branches by [date],” and wait for a reasonable period (approximately two weeks as a guideline). If no response is received by the deadline, the first condition for self-help is met. If the tree owner is unknown or unreachable, keep a record of any investigations conducted (such as reviewing property records or interviewing neighbors) to establish that you have made reasonable efforts, thereby preparing to assert the second condition. Even in urgent cases (Condition ③), objectively assess whether the situation truly warrants urgency, and if possible, obtain photographs or third-party testimony for peace of mind. Preparing to explain that the conditions for self-help are met after the fact is the first step in avoiding disputes.
- Accurately understand the conditions for avoiding court proceedings: If the conditions are met, the advantage of this amendment is that you can address the issue without going through the court proceedings that were previously required. However, it is important to note that unauthorized pruning is still not permitted unless the conditions are met. Legally, self-help without proper procedures is generally prohibited, and pruning branches without meeting the conditions may constitute an infringement of the neighboring property owner's property rights (tort). While the amendment allows certain self-help measures, these are exceptions permitted under clear conditions. As a landowner, it is essential to calmly assess whether the case falls under the category where court proceedings can be omitted, and if the conditions are not met, never act unilaterally but continue to seek resolution through negotiations or legal procedures. Even after the amendment, reckless self-judgment is strictly prohibited, and a cautious approach, such as consulting with experts when necessary, is required.
- Potential risks and management methods: When deciding to proceed with self-help measures to cut branches, the following risks should be considered, and appropriate management measures should be implemented for each.
- Legal risks: As mentioned above, cutting branches without meeting the requirements may constitute an illegal act. Even if the requirements are met, disputes may arise if the scope or method of pruning is deemed excessive. As a countermeasure, it is advisable to consult with a legal expert (lawyer, etc.) in advance and carefully plan which parts to remove. Pruning should be limited to the parts that extend beyond the property line and kept to the minimum necessary to maintain legal validity. It is also effective to keep records of communications and photos or videos of the site in case of trouble.
- Neighbor relations risk: Even if you have a legal right, cutting down a neighbor's tree on your own can cause emotional friction. As a countermeasure, it is best to explain and consult with the owner of the neighboring property in advance as much as possible. When issuing a notice, inform them that “if you do not cut the branches by the deadline, we will have no choice but to cut them ourselves.” When actually cutting the branches, it is also important to notify them in advance. Cutting branches without prior notice could damage the other party's impression of you. While the revised regulations have made it easier to exercise your rights, it is equally important to maintain good neighborly relations.
- Practical Risks (Safety and Property Risks): Cutting thick branches that have grown to high altitudes involves safety risks such as falls or property damage. There is also the risk that cut branches could fall onto neighboring buildings or vehicles and cause damage. As a countermeasure, consider entrusting the pruning work to a professional arborist or pruning service. Professionals can ensure safety measures are in place and often have insurance coverage in case of accidents, providing peace of mind. Even if you choose to do it yourself, minimize risks by working with multiple people and taking necessary precautions such as securing branches with ropes or laying down protective sheets. Inform your neighbors of the work schedule and ensure that someone is present during the work to enable immediate contact and response in case of any damage. It is essential to anticipate potential risks during the work and proceed with adequate safety measures and careful procedures.
- Cost burden risk: The costs associated with branch removal are generally considered to be billable to the tree owner, as mentioned earlier. However, it is not guaranteed that payment will be made smoothly. Depending on the relationship with the neighbor, discussions about cost sharing may be necessary, and in cases where the owner is unknown, there may be no one to bill. As a countermeasure, keep detailed records of the costs incurred for branch removal (such as the contractor's invoice) and be prepared to present supporting documentation when requesting payment later. If neighbors object to bearing the costs, it is advisable to aim for a resolution through discussion and propose a compromise on the burden-sharing ratio. If no agreement can be reached, legal action may be considered, but the costs of litigation must also be taken into account. In any case, since the right to claim costs does not necessarily mean they can be recovered, it is safer to plan conservatively from the outset, assuming that costs may need to be borne by the property owner.
- Boundary recognition risk: Whether branches are encroaching on neighboring property depends on the accurate location of the boundary line. If there is an error in the recognition of the boundary and branches that are not actually encroaching are cut, this could constitute an illegal act against the neighboring property and lead to further disputes. As a countermeasure, confirm that the boundary markers between your property and the neighboring property are clear. If boundary markers are unclear, we recommend conducting a survey or having a professional confirm the boundary before starting work. In cases where the angle or position of the overhanging branches is ambiguous, it is safer to conduct a site inspection together with the neighboring property owner and ensure mutual understanding before proceeding. By clearly establishing the facts regarding the overhang before taking action, you can prevent unnecessary disputes.
As described above, while the amendments have recognized self-help measures that are advantageous to landowners, it is essential to exercise caution from multiple angles when taking action. Adhering strictly to the legal scope and procedures, while prioritizing consideration for neighbors and risk management, is the key to smoothly implementing post-amendment measures for overhanging branches.
4. Practical advice for preventing overhanging branch issues in advance
The most desirable response is to prevent overhanging branches from becoming an issue in the first place. Here are some preventive measures that landowners and property owners can take.
- Regular boundary patrols and inspections: Regularly inspect the boundaries of your property to check for branches or hedges from neighboring properties that may be encroaching onto your land. Be especially vigilant during the spring and summer when trees are growing rapidly. If you detect signs early, you can consider taking action before the branches grow too large and cause serious encroachment. Even a simple inspection once a month can be effective in preventing problems.
- Communication with neighboring property owners: Maintaining good communication with your neighbors on a regular basis is directly linked to preventing problems. If you have any concerns about trees near the boundary, it is best to approach the other party early and discuss the matter. For example, you could say, “It seems like this branch is slightly crossing the boundary. Would you like to take a look together?” Taking a gentle approach to initiate a discussion can be beneficial. If the neighbor was unaware of the issue, informing them may prompt them to trim the branches voluntarily, or you may be able to discuss joint solutions together. By addressing the issue before it escalates, you can avoid emotional conflicts and work toward a mutually satisfactory resolution.
- Thoroughly manage trees on your own property: If you own land with trees or hedges, it is important to prune and manage them carefully so that they do not encroach on neighboring properties. With the recent amendment, neighbors now have the right to cut back trees that encroach on their property. Be mindful of this and take precautions to avoid causing trouble for your neighbors. This is especially important for owners of vacant or rental properties, who should regularly check that branches are not overgrown due to lack of maintenance. If you find it difficult to manage the trees yourself, it is a good idea to hire a landscaping company to do regular pruning. Consideration for your neighbors is essential for maintaining good relations, and it is important to manage trees on the property line with a spirit of mutual cooperation.
- Mutual agreements for trouble prevention: Consider discussing with neighboring property owners and establishing rules and cooperation systems for tree management. For example, a simple agreement such as “We will check the trees near the boundary together every year in [month] and prune them if necessary” can provide peace of mind. There is no need to formalize this in writing; even verbal agreements or shared understanding can be effective. If the adjacent property is vacant or owned by someone who lives far away and is not being managed, you can consult with the local government's vacant land office or neighborhood association to explore cooperative measures involving a third party. Establishing a network of relevant parties in advance will make it easier to share information and take action before problems arise.
- Stay informed about relevant laws and regulations: As with the recent amendments to the Civil Code, changes in laws and regulations that affect land and real estate management occur regularly. As a real estate owner, it is important to stay informed about legal news and notifications from the government on a daily basis to keep up to date with the latest information. Having knowledge allows you to prepare and take measures in advance, and even if a problem arises, you will be able to choose the most appropriate response. Participating in seminars or consultations with experts as needed, and establishing relationships with reliable real estate management companies or lawyers can provide peace of mind in times of crisis.
By implementing the practical advice outlined above, you can reduce the likelihood of boundary branch issues arising and minimize damage if they do occur. It is essential to maintain the spirit of “better safe than sorry” and make daily efforts to maintain the environment around the boundary and coordinate with your neighbors.
5. Summary (Basic Policy for Landowners)
With the recent amendments to the Civil Code, the measures that landowners can take against overhanging branches from neighboring properties have greatly improved. The following points are recommended as a basic policy for landowners.
- Prevention and coordination first: The best solution to the problem of overhanging branches is to prevent them from occurring in the first place. Check the boundaries regularly and maintain smooth communication with your neighbors. By sharing and cooperating on small issues early on, you can prevent them from escalating into major disputes.
- Properly understand and comply with the revised law: Even if branches encroach from neighboring properties, following the new rules of the revised Civil Code of 2023 will allow for faster and more appropriate exercise of rights compared to previous regulations. However, the exercise of rights is subject to specific requirements and procedures. Ensure that you follow the legal processes, such as issuing a notice, adhering to the required timeframe, conducting thorough investigations when the owner is unknown, and waiting unless it is an emergency. Correctly understanding the amendments and acting within their scope will also help prevent future disputes.
- Cautious and courteous response: Even when exercising the newly recognized right of self-help, it is important to remain calm and courteous at all times. Rather than immediately cutting branches out of emotion, it is important to proceed carefully, one step at a time, by contacting the other party, considering the method of work, and preparing safety measures. Even though these measures are legally recognized, since they involve altering another person's property, it is desirable to handle the situation with moderation and courtesy. This will ultimately help protect your own rights as well.
By keeping the above principles in mind, you should be able to make consistent decisions when addressing overhanging branches as a property owner. The new measures provided by the Civil Code amendments can serve as a valuable tool for property owners. However, these tools are only effective when they are properly understood and used appropriately. Finally, if you are unsure about how to handle overhanging branches, do not hesitate to consult a professional and seek a solution that aligns with the law and the facts of the case. By relying on appropriate knowledge and a calm response, strive to balance the protection of your property rights with maintaining good neighborly relations.