Yard Separation

Boundary and boundary of succession
The boundary of the land is the imaginary line that separates two heirs from each other. At the land registry you can request where the boundary is exactly. If you want to close or separate the garden, it is important to know this. On the boundary of the property there is a fence, for which both neighbors are responsible.

An yard fence that is exactly on the boundary of the property is owned by both neighbors. There is then a question of obligation of joint ownership. This means that the neighbors are jointly responsible for the fence, and therefore also for its maintenance and other costs. Such separation may only be amended by mutual agreement. If there is no yard fence yet, neighbors can put a yard fence on the boundary of the property together. The costs of this must be shared. If a neighbor refuses to cooperate, the other neighbor can demand through the court that he pays half of the costs.

Requirements for the separation of the yard.
The law states which requirements a fence must meet. The municipality is free to deviate from these rules in the General Local Ordinance (APV).  The following requirements are included in the law:

• An opaque yard fence at the back of the house may be a maximum of two meters high;
• At the front of the house, an opaque yard fence may not be higher than one meter;
• Planting as a yard fence does not have a maximum height attached to it; the planting must not present any nuisance or danger;
• Within two meters of the boundary line, no windows, wall openings or balconies may be placed that give a view of the ground of the neighbors. This also means that no opening or window may be made in the yard fence.
• A tree must be at least two meters from the boundary of the yard and a hedge at least 50 centimeters from the boundary, unless the tree or hedge is not higher than the yard fence.

Trees and the boundary
Trees that stand on the boundary of the property are co-owned by both neighbors. This means that neither of them is allowed to change anything about the trees without the permission of the other. They are also jointly responsible for its maintenance and costs. Trees that were once planted in the neighbor's yard, but whose trunk later grew across the boundary of the yard, are also co-owned. A tree that is not on the boundary should normally be at least two meters from the boundary. If a tree is too close to the boundary, you can ask the neighbor in writing to remove this tree within a reasonable period of time. If  he does not do this, you can ask the judge to force the neighbor to remove the tree.

There are a few exceptions to the main rule that a tree must be at least two meters from the boundary of the yard:

• The tree is not higher than the yard fence;
  
  
• The neighbors have agreed together that the tree may be closer to the boundary;
  
  
• A tree that is in public land may be within two meters of the boundary of the property;
  
  
• The municipality has determined a different distance in the General Local Ordinance;
• The right to ask the neighbors to remove the tree is time-barred.

Overhanging branches
If you suffer from overhanging branches of trees from your neighbors, they will first have to ask them to remove these branches within a reasonable period of time. If the neighbors do not comply with your request, you can remove the branches yourself. This right of pruning must not be abused. This can be the case if too much is pruned, causing irreparable damage to the tree.

Contact AGA Lawyers
The lawyers of AGA Lawyers can do a lot for you, such as guiding you during the entire process. Feel free to contact one of our expert lawyers for a 1st free intake interview.

TELEPHONE:  040-8444523  (1st intake interview free of charge and without obligation) (Available Mon to Fri between 09.00h and 21.00h). We can also be reached by e-mail:
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Placing a fence (fence, wall, hedge or hedge)
It is not permitted to place a fence exactly on the border between the two plots without the permission of the owner of the neighboring yard. This requires the consent of both owners. If your neighbor also agrees to place a certain fence, for example of a wooden fence, wall or hedge, between the two plots, then this fence will become your joint responsibility.  In other words, the fence belongs to the owners of both plots (common property). This means that you and your neighbor share the costs of installing the fence and maintenance (half each). But for any changes to the fence, you need the permission of the neighbor again. However, you may use it on your side of the fence at your own discretion, provided that the strength or nature of the fence is not affected. For example, you can drill some holes in it on your side of the wall to hang plants, for example. You can also provide your side of the wooden fence with a self-chosen paint color.

You can also choose to place a wall, fence or hedge on the edge of the plot boundary, but still completely in your own yard. It then belongs only to you and you can in principle do what you want with it. The neighbor has no involvement in that. It should also not touch your yard fence, for example by hammering nails in it or hanging something on it. He may not paint your yard fence, not even on his side, and he may not even put anything against it (for overhanging plants, however, see also below). If your neighbor prefers a different type of fence, he may place a different fence on his own property at his own discretion. Of course, it only belongs to him, so you are not allowed to do anything with it. Of course, you cannot charge your neighbor for the costs of your own inheritance fence, even partially. You are also solely responsible for its maintenance. However, you are not obliged to perform any maintenance. After all, it is your own fence and if you want to neglect it, you can.

When placing a fence, wall, hedge or hedge, think of the legal requirements. According to the Housing Act, a fence next to and behind the house may be a maximum of two meters high. For a yard fence in front of the house, one meter is the maximum. It is also possible that your municipality has prescribed something else in a municipal ordinance. You must then take this into account. Therefore, to be on the safe side, check with the Building and Housing Supervision department of the municipality before you get started.

Buildings over the boundary line
It often happens that the side façade of a garage or barn is partly on the ground of the neighbors. Or that the basement is partly under the ground of the neighbors. Usually this has happened by accident, for example because the owners of the neighboring heirs have assumed an inheritance fence that in reality does not form the boundary between the two plots. It is often seen that this comes to light when the owner of the neighboring plot sells his property or has it measured by the land registry for another reason. As the owner, he can demand that you break down and remove the goods built on or under his land. But usually this has enormous consequences for you. Maybe you have to narrow the garage so that your car no longer fits in it or maybe you have to dig out a whole new basement under the ground. In such circumstances, the parties may mutually regulate the consequences, for example by establishing an easement against the payment of a certain fee. After registration in the public registers of the easement, it also works against any subsequent owners of both lots.

If the parties cannot resolve a dispute between themselves, the dispute can be submitted to the court. The judge will therefore weigh the interests well against each other. For example, he can determine that the garage or basement must still be demolished. But he can also opt for another solution. It is conceivable that he determines that an easement is established on the piece of land that you use for your garage or basement. You must compensate the neighbors for this. You may also be required to purchase the plot of land. The broker is then often asked to value the value of this. This means that a definitive change to the boundary of the yard is made, which is also recorded as such in the public registers and at the land registry.

Tall trees and shrubs
The neighbor's right stipulates that "high-shooting" trees may not be within two meters of the boundary of the yard. For hedges and shrubs, a distance of half a meter applies. You can point this out to the neighbor in a letter. If there are tall trees (hedges or shrubs) within these two meters (half meters), you can, if necessary, demand in court that your neighbor completely removes the trees, shrubs and / or hedges at his expense. However, this is no longer possible if the trees or shrubs have been there for more than twenty years. Your claim to demand removal is then time-barred. But even then, the court can still award compensation to you.

You can prune and remove the branches of your neighbor's trees and shrubs, which hang over the boundary of the yard yourself, up to the boundary of the yard. You may also remove the roots that shoot through below the boundary of the yard. Before you do this, you should first inform your neighbor about the overhanging of branches and shooting through roots. He then has the opportunity to take measures himself that do not damage his tree or shrub. You will then have to allow it in your yard if pruning or removal is no other way. If your neighbor does not comply with your request to remove the overhanging branches and shooting roots, you can do this yourself. You cannot charge your neighbor for this.

Neighboring law regulates the following subjects by law:

Boundary of succession and separation ('dividing wall')
Art. 5:43 BW:  Definition of the concept of 'wall' in neighboring law
Art. 5:46 BW:  Right to demand delimitation of the boundary between the two heirs
Art. 5:47 BW:  Request to judge to determine the boundary between the two heirs
Art. 5:48 BW:  Authority to fence and close your own property
Art. 5:49 BW:  Right to build a two-meter-high fence ('dividing wall')
Art. 5:59 BW:  Boundary line between two yards lies under a ditch

Plantings at the boundary
Art. 5:42 BW: Required distance of the plantings in the yard of the neighbor to the boundary art.
5:44 BW:  Plants hanging over the fence and overshoot roots
Art. 5:45 BW:  Right to fruit hanging over the fence and falling off

Windows, balconies and overbuilding
Art. 5:50 BW:  Windows or balconies two meters from the boundary line of the two heirs
Art. 5:51 BW:  Opaque light windows within two meters of the boundary line of both heirs
Art. 5:54 BW:  Overbuilding on, above or below the yard of the neighbor

Water and watercourse
Art. 5:38 BW:  Draining water from higher yard to lower yard
Art. 5:39 BW:  Making a change to the watercourse of water flowing over its own yard
Art. 5:40 BW: Owner of the yard may use adjacent running water
Art. 5:41 BW:  From art. 5:38 to 5:40 BW the municipality can deviate by regulation
Art. 5:52 BW:  Correct drainage design
Art. 5:53 BW:  Drainage of water or garbage

Emergency rights to,  above or below the neighbour's yard
Art. 5:55 BW:  Imminent collapse
Art. 5:56 BW:  Use of the neighbor’s yard for work ('ladder right')
Art. 5:57 BW:  Indication of a way out on the neighbor’s yard to gain access to the public road himself ('emergency road')
Art. 5:58 BW: Necessary water supply through or over the neighbor’s yard ('emergency water pipe')

The role of AGA Lawyers
A lawyer of AGA Lawyers offers assistance in most cases within civil law. In the event of a civil law conflict, an expert lawyer is at your side. Together with you, the lawyer determines the right approach and ensures the best possible solution and result. Advising, mediating, litigating, negotiating or drafting legal documents, AGA lawyers arrange it for you.

Contact AGA Lawyers
The civil lawyers of AGA Lawyers can do a lot for you, such as guiding you during the entire process. Feel free to contact one of our expert lawyers for a 1st free intake interview.

TELEPHONE: 040-8444523  (1st intake interview free of charge and without obligation) (Available Mon to Fri between 09.00h and 21.00h). We can also be reached by e-mail:
E-MAIL:  info@agajuristen.nl or contact form on the right side of our website.

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