Boundary Trees: Who Decides Between Removal and Pruning? (Cass. 1987)

Imagine: you have just bought a charming house in Boulogne-Billancourt, with a garden overlooking that of your new neighbour. All is well until the day you notice that his thujas, planted 50 centimetres from the fence, are over 3 metres high and cast your terrace into shade. You ask him to remove them. He refuses, preferring to prune them. But you want them gone. Who is right? This is precisely the question the Court of Cassation had to decide in a judgment of 14 October 1987 (No. 86-13.286).

In France, the rules on planting distances are strict: a tree over 2 metres high must be planted at least 2 metres from the neighbouring property. Within 2 metres, only shrubs under 2 metres are permitted. But what happens when the tree has been planted at a distance between 0.50 m and 2 metres? Can the neighbour demand outright removal, or must he be content with pruning?

The answer from the Court of Cassation is clear: the option between removal and pruning belongs to the tree owner, not to the neighbour suffering the nuisance. In other words, if your trees are in breach, it is you who decides whether to cut them down or reduce them. But beware, this is not a carte blanche: the neighbour can still obtain redress for abnormal neighbourhood disturbance if the nuisance persists. Explanations follow.

The Facts: A Story That Happens Every Day

The case began within the jurisdiction of the Versailles Court of Appeal, but it could have taken place in Évry or any French commune. A property owner (let's call him Mr Dupont) discovers that his neighbour, Mr Martin, has planted thujas and other shrubs only 50 centimetres from the boundary. These plants exceed 2 metres in height, contravening Article 671 of the Civil Code (which sets minimum distances). Mr Dupont then demands the removal of the trees. Mr Martin, for his part, offers to prune them to an acceptable height.

The tribunal de grande instance, after a site visit, orders removal. But the Versailles Court of Appeal reverses this decision on 28 June 1985: in its view, Mr Dupont is not entitled to demand removal, because the option between removal and pruning belongs to the tree owner. Mr Dupont appeals to the Court of Cassation, arguing that since the trees were planted in violation of the legal distances, the neighbour should be able to demand their complete removal.

The Court of Cassation dismisses his appeal by a judgment of 14 October 1987. It confirms that the tree owner retains the choice: he may either remove them or prune them, provided the planting is between 0.50 m and 2 m from the boundary. The neighbour can only insist on removal if the distance is less than 0.50 m (Article 672 of the Civil Code).

The Court's Reasoning — Dissected

To understand this decision, one must delve into Articles 671 and 672 of the Civil Code. Article 671 provides that tall trees (over 2 metres) may only be planted at a distance of 2 metres from the neighbouring property. For plantings under 2 metres, the minimum distance is 0.50 metres. Article 672 specifies that the neighbour may require the removal of trees planted less than 0.50 metres away. But for those planted between 0.50 m and 2 metres, the law says nothing explicitly. This is where case law comes in.

The Court of Cassation interprets these provisions by combining the right of ownership (Article 544 of the Civil Code) and the theory of abnormal neighbourhood disturbances (Article 1240 of the Civil Code, which requires compensation for damage caused by fault). It considers that the tree owner, by planting at a lawful distance (between 0.50 m and 2 m), has not committed a fault per se. But if the trees cause excessive nuisance (shade, falling leaves, etc.), the neighbour may seek cessation of the disturbance. However, this cessation may take the form of pruning rather than removal, because the planter's right of ownership takes precedence over the demand for total removal.

In short, the Court of Cassation has established a right of option in favour of the tree owner. This was not obvious: some lower courts considered that removal was the only solution in case of infringement. But the Supreme Court harmonised the case law in favour of the planter. What few people know is that this option is not absolute: if the tree is planted less than 0.50 m away, the neighbour may demand removal without discussion. And if the nuisance is such that it constitutes an abnormal neighbourhood disturbance, the judge may order removal even if the option belongs to the planter.

What This Means for You — Practically

For house owners with gardens, this decision is crucial. If you plant a tree 1 metre from your neighbour's fence, and that tree exceeds 2 metres, you are in breach. But your neighbour cannot demand removal: he must be content with pruning, unless you plant less than 0.50 m away. In other words, you keep control.

Take a concrete example in Évry. You own a house with a large cherry tree planted 1.20 m from the boundary. It is 3 metres tall. Your neighbour complains about the shade and leaves. He demands that you remove it. Thanks to this judgment, you can tell him: "I'll prune it to 2 metres, and that's the end of it." If he refuses and takes the matter to court, the judge will side with you on the principle of the option.

For tenants, be careful: you are not the owner of the garden. If you plant without permission, it is the owner who will bear the consequences. In the event of a dispute, the owner may ask you to restore the premises. It is therefore better to obtain the landlord's written consent before planting.

For buyers, check before purchasing whether the neighbour's trees are too close. If so, know that you cannot demand removal, only pruning. This may influence your purchase decision or the negotiation price.

undefined, I have come across cases where the exasperated neighbour had himself pruned the neighbour's trees without permission. Grave mistake! This can amount to a voie de fait (unlawful act) and incur criminal liability. Never take the law into your own hands: consult a lawyer and apply to the court.

Four Tips to Avoid This Type of Dispute

• Before planting, measure the distance. Use a tape measure: any tree over 2 metres must be at least 2 metres from the boundary. Within that, limit yourself to shrubs under 2 metres. Scrupulously follow these rules to avoid any conflict.
• If you inherit trees too close, prune them regularly. Keep a height of less than 2 metres for trees planted between 0.50 m and 2 m. This keeps you lawful and your neighbour will have no reason to complain.
• In case of dispute, favour discussion before litigation. Offer to prune or fell at your expense. If the neighbour refuses, inform him in writing (registered letter with acknowledgement of receipt) of your intention to prune. Keep a record of your exchanges.
• Never touch the neighbour's trees without his consent. If his branches overhang your property, you have the right to cut roots and branches up to the boundary of your property, but not beyond. For the trunk, it is prohibited. Instead, apply to the tribunal d'instance to obtain an order.

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Further Reading: Related Case Law and Developments

The 1987 decision is part of a consistent line of the Court of Cassation. Already, a judgment of 19 February 1970 (No. 68-13.604) had established the principle that the tree owner may choose between removal and pruning. The Court of Cassation confirmed this solution on several occasions, notably in a judgment of 13 July 2004 (No. 02-18.449) where it specified that the option exists even if the tree was planted after the acquisition of the neighbouring land.

But beware: the recent trend is towards protecting the neighbour in case of abnormal disturbance. For example, a judgment of 12 June 2015 (No. 14-18.123) ordered the removal of trees even though they were planted at a proper distance, due to the excessive shade they caused. The judge considered that the disturbance exceeded the normal inconveniences of neighbourhood. The owner's option is therefore not absolute.

What this means for the future: if you are a victim of significant nuisance, you can always invoke the theory of abnormal neighbourhood disturbance to obtain removal, even if the tree is more than 0.50 m away. But the burden of proof lies with you: you must demonstrate that the nuisance exceeds what is normally acceptable between neighbours.

What You Must Absolutely Remember

1. Who decides between removal and pruning? The tree owner, if the planting is located between 0.50 m and 2 m from the boundary.
2. What if your neighbour refuses to prune? You can put him on notice by registered letter, then apply to the tribunal judiciaire (formerly tribunal d'instance) for a pruning order.
3. Can I cut myself the branches that overhang my property? Yes, but only up to the boundary of your property. For the trunk, it is prohibited.
4. Is there a time limit to act? The action for pruning or removal is time-barred after 5 years from the planting (Article 2224 of the Civil Code). After this period, you can no longer act on the basis of the distance violation.
5. What to do in case of abnormal disturbance? Apply to the court in summary proceedings for an expert assessment and, if the nuisance is proven, for removal or pruning. You can also claim damages.

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