A good tree can only be recognized by its fruits, is a saying. The fruits, which bore three birch trees about 18 meters high near Karlsruhe, weighed heavily on the relationship between two neighbors. Because after a man had planted the trees as a source of food for insects and birds, his neighbor saw his property impaired.
Finally, the birches also fly pollen, discard leaves or seeds, even branches fell on his property. Too much, was the neighbor from the Baden-Württemberg Heimsheim - and complained. The so-called birch immissions must be turned off, the trees are felled. In the alternative, the man applied for compensation. The birch owner was a disturber and should pay him in the months of November to June each month 230 euros.
But the owner did not want to remove his trees or pay any compensation. The birches are completely healthy, the Baden-Württemberg applicable minimum distance of two meters between trees and neighboring land will be respected.
Germany's highest judges have now had to deal with this case. In the third and final instance, the Federal Court has now decided that pollen, falling leaves or seeds must be tolerated by the neighbors in principle, as stated in a statement of the court. The Senate finally categorized these events as what they are in the three-year legal dispute: as a natural event.
Pollen allergy is not enough for cases of birch
The Karlsruhe district court had previously demanded the removal of the birches, after the complaining neighbor at the district court Maulbronn had failed. Now the BGH has stopped the precipitation. Because for natural events a property owner can not be held accountable.
Only if in such a case no "proper management" takes place, there is a claim for disposal. Thus, for example, a property owner can not be held responsible for overthrows not recognizable sick trees as a result of natural forces, judged the Karlsruhe judges.
The case could only be different in exceptional cases, said the presiding judge of the competent 5th Civil Senate, Christina Stresemann. However, a pollen allergy, for example, is not enough to require the birchfall.
The complaints of the plaintiff are considerable here, but not so difficult that the trees would have to be felled - and the required distance is maintained. "Consequently, the plaintiff must accept the harassment," said Stresemann. Since the landowner was not responsible for the immissions, the complaining neighbor could not demand compensation.
Small consolation for the now inferior neighbor: as soon as branches, branches or roots grow over the property boundary, the neighbor has the right to cut them off if they impair the use of the property - and he has set a reasonable deadline for removal.
Reference number: V ZR 218/18