Trees, branches and roots at the property boundary: the self-help right

The core is section 422 ABGB as amended by the Civil Law Amendment Act 2004 (Zivilrechts-Änderungsgesetz 2004). Under it every landowner may remove from their own soil the roots of a neighbour’s tree or other plant and may cut off or otherwise use the branches that reach into their airspace. The law thereby gives you an independent right to self-help.

This means that you need no prior request to the neighbour and no court decision for the intervention. You may act as soon as roots intrude into your soil or branches reach into your airspace. Under the law you may also keep and use the branches that you cut off.

The reach is important: the self-help right covers only the actual intrusion onto or over your land. It does not entitle you to prune the tree on the neighbouring land or even to fell it. The property boundary at the same time forms the limit of your right to intervene.

The self-help right does not apply without limits. Section 422 ABGB requires that you proceed professionally and spare the plant as far as possible. Whoever removes roots or branches improperly and thereby harms the tree exceeds the limits of the self-help right and may make themselves liable to compensate the neighbour.

For the costs the law distinguishes according to whether damage exists. In the basic case the landowner who exercises the self-help right bears the costs of removal themselves. Whoever only removes the troublesome overhang, without damage threatening or having occurred, pays for the cut themselves.

It is different where damage has occurred or is threatening through the roots or branches. Then the owner of the tree or plant must reimburse half of the necessary costs of removal. This sharing of costs is often the first point that a legal assessment clarifies.

Not every conflict over neighbouring trees can be solved with self-help. Where it is not a physical intrusion but a matter of large trees taking light or air from you, section 364 para. 3 ABGB applies. Under it a landowner may also enjoin the deprivation of light or air caused by the neighbour’s trees or other plants.

The threshold, however, is high. The deprivation can be enjoined only in so far as it exceeds the level of section 364 para. 2 ABGB and leads to an unreasonable impairment of the use of the property. Both requirements must be met together. Not every cast of shade and not every obstructed view is enough.

The nature-protection and tree-protection rules of the federal and provincial level remain unaffected. Where the tree is subject to tree protection, an official permit may be required before any cut. Therefore examine before an intervention whether a permit requirement exists for the specific tree.

The self-help right of section 422 ABGB is to be distinguished from a damages claim. It allows you to remove intruding roots and overhanging branches. Whether there is in addition a claim to compensation for damage that has already occurred, for example because roots have damaged a pipe, is a separate question.

It is precisely with damage that the significance of professional action shows. Whoever harms the tree while removing may themselves be obliged to compensate. Therefore act carefully and secure the condition before and after the cut with photographs. More on compensation questions in construction is on our focus page on construction damages and liability.

Before you pick up the saw, clarify the tree protection. The nature-protection and tree-protection rules of the federal and provincial level remain unaffected by the self-help right and may require a prior permit. Whoever cuts without a required permit risks administrative consequences.

First record whether roots intrude into your soil or branches reach into your airspace. Secure the intrusion with photographs and note whether damage has already occurred or is threatening. These records form the basis for self-help and for the question of cost-sharing.

Examine before any cut whether the tree is subject to tree protection and an official permit is needed. Proceed professionally when removing and spare the plant as far as possible. In this way you stay within the framework of section 422 ABGB and avoid liability to compensate the neighbour.

Where damage has occurred or is threatening, or where it concerns deprivation of light or air, early legal advice is sensible. A legal assessment quickly clarifies which path works. How neighbour law operates with interference is explored in our article on neighbour law, construction site and immissions.