This article addresses two frequent themes in neighbour disputes: removing overhanging branches or encroaching roots, and the duty to fence land under § 127 of the Slovak Civil Code. When removing roots and overhangs, the law allows a neighbour to intervene only if the removal is done considerately (without endangering the life of the tree) and at a suitable time of year (during the dormant season). The neighbour acquires ownership of the branches only at the moment they are removed, while the fruit belongs to the owner of the tree. In its second part, the article explains that in Slovakia there is no automatic statutory duty to fence one's land. A court may, however, exceptionally order fencing where it is needed to prevent disturbance (e.g. animals straying onto the land, § 127(2) of the Slovak Civil Code) or where property is seriously endangered (e.g. a dog attack, § 417(2) of the Slovak Civil Code). The condition is that the fence must not impede the use of the neighbouring plots.
Neighbour relations can be complicated, especially where the upkeep of greenery or the demarcation of plots is concerned. The Slovak Civil Code provides a framework for resolving these situations so that unnecessary disputes do not arise.
The rules for dealing with roots (undergrowth) and branches (overhangs) derive from § 127(1) of the Slovak Civil Code. By undergrowth we mean the tree's roots in the soil. Large roots carry above all the risk of damage to walls, fences or even the buildings themselves. Overhangs are branches that project over the neighbour's land. Unlike roots, they are visible to the naked eye at first sight. They may restrict the owner in cultivating the land, limit their growing of fruit and vegetables, and deprive them of daylight or of nutrients in the soil. The owner of the neighbouring land may intervene only if both of the following conditions are met:
While with roots the question of ownership recedes into the background in practical terms, with fruit-bearing branches the legal regime of ownership is key. The fruit belongs by law to the owner of the tree. To prevent disputes, the most appropriate course is for the owner of the neighbouring land to invite the tree's owner to harvest the fruit before removing the overhangs. Ownership of the branches themselves passes to the owner of the neighbouring land only at the moment of their proper removal. Since the work is carried out during the dormant season, ideally there should be no fruit on the branches at all.
Caution: In the case of dry, large trees that endanger property in the wind, heightened care and communication with the owner are called for, and if necessary court proceedings should be initiated on the ground of a threat of serious interference with the exercise of rights under § 417(2) of the Slovak Civil Code.
Under Slovak law there is no statutory duty to fence one's land. Fencing is as a rule a voluntary decision of the owner, and in practice there may also be situations where fencing is not technically possible or expedient, or would cause disproportionate interference (e.g. terrain obstacles, access routes, shared yards, protection zones). A court may order fencing only in exceptional cases, where it is needed to protect ownership rights or to prevent interference from the neighbouring land. These are situations assessed on a case-by-case basis.
Under § 127(2) of the Slovak Civil Code, a court may, on application, impose a duty to fence land if three conditions are met:
Since the purpose of § 127(2) of the Slovak Civil Code is to prevent disturbance and forestall damage to property, the court may impose a duty to fence land where it would not be fair to require the claimant to fence their own land. In doing so, the court examines whether fencing in particular will give the claimant's property protection that cannot be secured in any other way, or that appears to be the most suitable alternative. For the court's decision to be enforceable, the claimant must specify the type of fence and its dimensions.
A duty to fence land can be sought not only through § 127(2) of the Slovak Civil Code but, in certain circumstances, also through § 417(2) of the Slovak Civil Code. The fundamental difference between these provisions lies in the intensity of the danger. While § 417(2) of the Slovak Civil Code requires proof of a serious threat (for example, the keeping of a dangerous dog), § 127(2) of the Slovak Civil Code is a tool for dealing with ordinary neighbourly disturbance that does not reach that level of severity, typically where small animals stray onto the neighbouring land.
Note: This article is for information purposes and is based on current legal theory and legislation.
For specific neighbour disputes, we recommend a consultation with our law firm VLKOVÁ.
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