One of the most common causes of neighborhood problems is the problem of tree branches crossing the boundary from neighboring properties. The Civil Code was amended on April 1, 2023, to clarify the right to cut off cross-boundary branches under certain conditions , thereby expanding the options for solving the problem. nbsp; has been clarified, expanding the options for resolving problems. This article explains the contents of the revised Civil Code Article 233 and how to deal with it in practice. In the event of an actual problem, consultation with a specialist (lawyer or judicial scrivener) is recommended.
Under the previous Civil Code, the owner could cut off the roots that crossed the boundary from the neighboring land by himself, but he could only request the owner to cut off the branches. However, in practice, there have been many cases where owners of neighboring land did not agree to cut branches for various reasons, and the following problems existed.
In order to solve these problems, the revised Civil Code enacted in 2021 came into effect on April 1, 2023, and the rules for cutting cross-boundary branches have changed significantly.
Article 233 of the Civil Code after the amendment has the following contents.
Article 233 When a branch of a bamboo tree on adjacent land crosses the boundary line, the owner of the land may have the owner of the bamboo tree cut off the branch.
2 In the case of the preceding paragraph, when the bamboo tree belongs to the common ownership of several persons, each co-owner may cut off the branch.
3 In the case of paragraph 1, when the following occurs, (1) the owner of the land may cut off the branch
(i) when the owner of the bamboo tree does not remove the branch within a reasonable period of time despite having notified the owner of the bamboo tree to remove the branch
(ii) When the owner of the bamboo tree cannot be known or his/her whereabouts cannot be ascertained.
(iii) When there are urgent circumstances.
4 When the roots of a bamboo tree on an adjacent property cross the boundary line, the roots may be cut off.
This amendment legally clarifies when a person can cut off a cross-boundary branch by himself/herself.
A comparison of the rules before and after the amendment shows the following differences.
| Item | Before amendment | After amendment |
|---|---|---|
| Basic Principle | Branches must be cut by the owner Roots can be cut off by themselves |
Branches are to be cut off by the owner in principle Roots can be cut off by themselves |
| In case of shared bamboo trees | No regulation (consent of all co-owners is required) | Each co-owner can cut branches independently |
| If the owner does not cut them out | Lawsuit is required | After a reasonable period of time has elapsed since the notice, the branch can be cut off by the owner. |
| If the owner is unknown or his/her whereabouts are unknown | Difficult to deal with | Can be removed by oneself |
| In case of emergency | Difficult to respond | Can be cut out by oneself if there are urgent circumstances |
| Cutting cost | Bamboo owner bears the cost in principle (Tort, unjust enrichment) |
In principle, the owner of the bamboo tree bears the cost (Tort and unjust enrichment) |
Under the revised Civil Code, it is now possible to cut off cross-boundary branches by oneself in the following three cases.
If the owner of a bamboo tree does not remove the branch within a reasonable period of time despite a notice to the owner demanding removal of the branch, the owner may remove the branch by himself/herself.
Procedures:
If the owner of the bamboo tree cannot be known or his/her whereabouts cannot be ascertained, the branch can be cut off by himself/herself without a notice.
Procedure:
If there are urgent circumstances , such as when a branch is about to break due to a typhoon or strong winds, or when there is a danger of fire, the tree owner may cut it down without notice.
Examples of pressing circumstances:
If a bamboo tree is owned in common by multiple owners, before the amendment it was difficult to cut it down without the consent of all co-owners, but after the amendment, each co-owner can cut down the branches independently. As a result, even if some co-owners are unknown or do not respond, the branch can be cut if there is a co-owner who can respond.
It may be necessary to enter the adjoining property to cut away cross-boundary branches, if necessary. According to Article 209 of the Revised Civil Code, adjacent land may be used to the extent necessary to cut away cross-boundary branches. However, the following points must be noted
When trimming cross-boundary branches, one should limit trimming to the area up to the boundary line of one's own property and should avoid unnecessarily cutting branches on the neighbor's side of the property. It is also important to use appropriate cutting methods to avoid damaging the tree.
Principles of proper resection:
In principle, the owner of a bamboo tree should bear the costs incurred for the removal of cross-boundary branches. Claims can be made under Article 703 (unjust enrichment) and Article 709 (tort) of the Civil Code.
Flow of claiming expenses:
| Type of expense | Whether or not a claim can be made | Basis of law |
|---|---|---|
| Excision work cost | Can be claimed | Civil Code Article 703 and 709 |
| Request for professional contractor | Claimable | Civil Code Article 703 and 709 |
| Disposal cost | Can be claimed | Civil Code Article 703 and 709 |
| Excessive removal costs | difficult to claim | -Difficult to claim |
Since the problem of cross-boundary branches has a high risk of developing into neighborhood trouble, it is important to keep the following preliminary measures in mind.
Prioritize communication
Keep records
Understand the legal basis
Consult with experts
Case： A branch of a tree from a neighboring property crossed the border into the homeowner's yard, blocking sunlight and causing many fallen leaves.
Solution:
Case： The adjoining land is vacant and the owner's contact information is unknown, making it impossible to deal with the cross-boundary branch.
Solution:
Case： A tree branch from a neighboring property hit the exterior wall of the home in a strong wind , posing a risk of damage.
Solution:
The revised Civil Code, which came into effect on April 1, 2023, significantly changed the rules regarding the removal of cross-boundary branches. Previously, one could not remove a branch from an adjacent property by oneself, and there were cases that could only be resolved through a lawsuit.
In addition, each co-owner of a shared bamboo tree can now remove branches independently, expanding the options for dealing with the problem of cross-boundary branches.
When cutting cross-boundary branches, it is important to follow the appropriate procedures and to keep cutting to the minimum extent necessary. To prevent problems, it is also advisable to engage in prior dialogue and consultation with experts whenever possible.
If you have any uncertainties, utilize the free legal consultation services provided by each local government or consult an attorney or judicial scrivener to discuss appropriate measures to be taken.
A1: According to the commentary on the revision of the Civil Code, it is generally considered to be about two weeks. However, this may vary depending on the season, the condition of the tree, and the degree of difficulty of the cutting, so judgment should be made according to the situation.
A2: In principle, the owner of the bamboo tree is considered to bear the cost. It is possible to claim expenses based on Article 703 (unjust enrichment) and Article 709 (tort) of the Civil Code. However, in practice, there are cases where the owner does not agree to the claim for expenses, so it is advisable to resolve the issue through prior discussion.
A3: According to Article 209 of the Revised Civil Code, adjacent land may be used to the extent necessary to cut away overbearing branches. However, it is advisable to keep the use to the minimum necessary extent and, if possible, to notify the owner of the adjacent land in advance.
A4: Although there are no clear rules in the law, it is generally advisable that the person who cut the branches should dispose of them or consult with the bamboo tree owner to determine how to dispose of them. As for the disposal cost, it may be possible to claim it from the bamboo tree owner as well as the cost of cutting.
A5: The situation may be that a branch is about to break due to a typhoon or strong winds, that the branch is causing damage to a building, that there is a fire hazard, or that the branch is seriously impeding the safety of pedestrians. All of these situations are urgent, and there is a risk that the damage may increase if you wait for a notice.
If you found this article helpful, please check the status of trees near the boundary with the neighboring land. Regular pruning and communication with neighbors are important to prevent cross-boundary troubles. In the event of actual trouble, we recommend consulting a specialist (lawyer or judicial scrivener); INA&Associates also provides consultation on real estate matters (we can refer you to a specialist for legal advice), so please feel free to contact us for more information.