Fencing on and around the property boundary

Fences and hedges on the property boundary

A garden wall, a wire fence or a hedge seems like a detail, until it turns out that it is located just over the neighbor's border. Where you are allowed to fence off, at what distance plants must remain and when a fence becomes joint property is regulated in the law on neighbors. These rules were included in the Field Code for a long time, but since September 1, 2021 they have been included in Book 3 "Goods" of the Civil Code (Article 31 of the law of February 4, 2020 has abolished Articles 29 to 39 of the Field Code). 

We provide an overview below, in plain language, with a reference to the applicable article.

1. You may close up to your border, not over it - art. 3.61, § 1 of the Dutch Civil Code

Every owner has the right to close off his plot, but that right extends to the plot boundary and no further (art. 3.61, § 1, first paragraph of the Dutch Civil Code). A fence may therefore be placed entirely on your own property, against the border, without the neighbor having to agree to this. As soon as the fence goes on or over the boundary line, you do need the neighbor's agreement: after all, you are taking over a piece of his land. For the common closure, the same article explicitly refers to the title about neighborly relations (art. 3.61, § 1, second paragraph of the Dutch Civil Code).

Of course, public law also continues to play a role: art. 3.61, § 1 of the Dutch Civil Code links the closing right itself to compliance with legal and regulatory requirements. Urban development regulations, allotment regulations and municipal regulations may therefore impose stricter requirements regarding height, material or location.

(Previously: art. 30, last paragraph of the Field Code - any fence other than a living hedge could be placed on the outermost boundary of the property.)

2. If the fence is on the border, it is probably communal - art. 3.103 to 3.105 BW

Management is the right of co-ownership of a separating fence, whether it concerns a wall, a hedge, a moat, a fence or a fence (art. 3.103 BW). Every common fence is presumed to belong to each neighbor for half (art. 3.104 of the Dutch Civil Code).

A fence that is erected along or astride the property boundary is presumed to be common, unless acquisitive prescription or other title (art. 3.105, first paragraph of the Dutch Civil Code). If it is not established that the fence lies astride the border, the presumption can also be refuted by signs of non-manuality (art. 3.105, second and third paragraphs of the Dutch Civil Code): a wall with the top sloping to one side, a ditch with the excavated earth on one side, or a fence around one completely fenced plot.

The practical consequence is important. Maintenance and major repairs and the reconstruction of a common fence are borne by both co-owners in proportion to their rights (art. 3.112, first paragraph of the Civil Code), and acts of management or disposition in principle require the consent of both (art. 3.110, second paragraph of the Civil Code). Anyone who does not want to contribute to major repairs or reconstruction can relinquish his right of manpower to the other co-owner, unless he continues to use the fence or caused the damage himself (art. 3.112, second paragraph of the Dutch Civil Code).

(Previously: art. 32 Field Code for the presumption of commonness of a hedge, art. manliness.)

3. Your neighbor may be obliged to cooperate — art. 3.106 of the Dutch Civil Code

Between two plots of land, at least one of which is built on, each owner can demand that the other one cooperate in erecting a common fence, unless there is already a private fence along the dividing line (art. 3.106, first paragraph of the Dutch Civil Code). The costs are divided equally (art. 3.106, second paragraph of the Civil Code).

Anyone who wants a wall that can serve as support for a building can impose on the neighbor that the fence consists of a wall of normal strength, width and height (art. 3.106, third paragraph of the Civil Code). However, if the neighbor shows that he has no use for it and will not use it, the wall will be built at the sole expense of the applicant and will remain private. Only in that case may the wall be erected astride the property boundary, without compensation for the occupied strip of land (art. 3.106, third paragraph of the Dutch Civil Code).

Anyone who wants to join later can purchase the manorship at half the value of the fence and the underlying land (art. 3.107 of the Dutch Civil Code). Conversely, anyone who actually takes possession of a private fence may be forced to purchase that ownership (art. 3.108 of the Dutch Civil Code).

4. Distance rules for hedges, shrubs and trees — art. 3.133 of the Dutch Civil Code

Fixed minimum distances from the plot boundary apply to plantings (art. 3.133, second paragraph of the Dutch Civil Code):

• trees of at least two meters high: two meters, calculated from the center of the base of the tree;
  all other trees, shrubs and hedges: half a meter.
• Since 2021, only the actual height of the tree counts. tree. The earlier and often disputed distinction between high-stemmed and low-stemmed trees from art. 35 Field Code has disappeared.
• There are exceptions (art. 3.133, first paragraph of the Dutch Civil Code): the distance rules do not apply if the neighbors have concluded an agreement about this, if the planting has been in the same place for more than thirty years, or if it is part of a common fence. In addition, since the law of June 19, 2023, an exception applies to plants on the public domain.

If a plant is too close to the border, the neighbor can request pruning or felling; the judge can reject that claim if it constitutes an abuse of rights and takes into account all circumstances, including the public interest (art. 3.133, third paragraph of the Dutch Civil Code). You are never allowed to dig up or prune someone else's plot.

Finally, a rule that solves many discussions in practice (art. 3.133, fourth paragraph of the Dutch Civil Code): the neighbor cannot object to plantings that do not extend higher than the boundary between the plots, regardless of the distance. If it is a non-common fence, the owner may even use it as support for his plants.

A separate regulation applies to overhanging branches and overshooting roots (art. 3.134 of the Dutch Civil Code; former art. 37 of the Field Code).

5. Plantings from before September 1, 2021 — art. 37 law of 4 February 2020

The new rules do not have retroactive effect: Book 3 has a respectful effect (art. 37 of the law of 4 February 2020). For trees, shrubs and hedges that were planted before September 1, 2021, the old regulation continues to apply: two meters for tall trees and half a meter for other trees and living hedges (art. 35 Field Code), and half a meter for a living hedge that serves as a fence, unless local custom provides otherwise (art. 30, fourth paragraph of the Field Code). With older plantings, it is therefore worthwhile to first check when they were planted.

Are you unsure about the correct boundary?

Please contact us.

Most discussions about fences and hedges do not start with the law, but with uncertainty about where exactly the plot boundary is. The plot boundaries are successively determined by acquisitive prescription, the authentic deed of demarcation, the property titles and finally the condition of the property and other factual indicators, including the actual closure and the cadastral documents (art. 3.61, § 2 BW). Each owner can oblige his neighbor to demarcate (art. 3.61, § 3 BW), and the costs are borne equally (art. 3.61, § 5 BW). A demarcation by a sworn surveyor expert establishes that boundary in a contradictory manner and prevents disputes afterwards. Please feel free to contact us for a measurement or a determination.

Overview of the cited legal articles
BELGIAN Civil Code, Book 3 "Goods" (since September 1, 2021)

Art. Art. 3.61, § 2 - Determination of property boundaries

The boundaries of land ownership are primarily determined by acquisitive prescription. Failing this, the authentic deed of demarcation determines the property boundary, unless a later contract changes this. In the absence of demarcation, the plot boundaries are determined by the property titles. If these do not provide a definitive answer, the plot boundaries will be determined according to the condition of the property and the other factual indications, including the actual closure and the cadastral documents.

Art. 3.103 — Definition of ownership

Management is a right of co-ownership of a separating enclosure, regardless of whether it concerns a wall, hedge, moat, fence, fence or any other material element.

Art. 3.104 — Size of the shares

Every common closure is presumed to be half co-owned by each of the two owners, unless proof to the contrary.

Art. 3.105 - Proof of ownership

Fences that have been established along or astride the property line are presumed to be common, unless prescription or title to the contrary arises.
If it is not established that the fence is located astride the property boundary, the presumption of ownership can also be contradicted by a sign of non-management.
The signs of non-management are: unless there is proof to the contrary, the following: a wall is presumed to belong to the owner of the plot towards which the top of that wall slopes or on whose side architectural elements reveal its private nature; a ditch is deemed to belong to the owner of the plot on whose side the excavated earth is located; a fence is presumed to belong to the owner of the closed plot when a single plot is completely closed.

Art. 3.106 - Forced method of creation

Between two plots of land, at least one of which is built on, any owner can demand that the adjoining owner cooperate in the creation of a common fence, unless there is already a private fence along the dividing line.
If a common fence is erected, the owners will contribute equally to the costs.
If one of the two neighbors wants a wall to be erected that can serve as support for a building, he can impose on his neighbor that the fence consists of a wall of normal strength, width and height depending on the destination of the goods. However, if the requested neighbor demonstrates that he has no use for such a wall and will not use it, the wall will be erected at the sole expense of the applicant and will be private to the latter. In that case, the wall can be erected astride the property line, without any compensation being due for the occupied part of the property.

Art. 3.107 - Forced sale of ownership

Any owner of a plot of land adjoining an enclosure may make it common in whole or in part by paying to the owner of the enclosure either half of its value or half of the value of the part of the enclosure that he wishes to make common, together with half the value of the corresponding underlying land.

Art. 3.112, first and second paragraph - Obligations of the co-owners and waiver

Maintenance repairs and major repairs (...), as well as the reconstruction of a common fence, are borne by the co-owners, each in proportion to their rights, unless they are solely attributable to one of them.
Except if a co-owner actually continues to use the common fence or has caused the damage, he can release himself from the obligation to to contribute to the major repairs or reconstruction by ceding his right of ownership to the other co-owner (...).

Art. 3.133 - Distances for plantings

The distance referred to in the first paragraph is two meters from the center of the base of the tree for trees that are at least two meters high and half a meter for other trees, shrubs and hedges.
The neighboring neighbor can demand the pruning or felling of plantings that have been planted at a shorter distance, unless the judge is of the opinion that this constitutes an abuse of rights. In making this decision, the judge takes into account all the circumstances of the case, including the general interest. However, the neighbor cannot object to the presence of plants that do not extend higher than the fence between the plots. In that case, if it concerns a non-common fence, the owner has the right to use it as support for his plants.

The first paragraph stipulates that the distance rules do not apply by agreement between the parties, to plants that have been in the same place for more than thirty years or to plantings that are part of a common fence; the law of June 19, 2023 added an exception for the public domain.

Field Code (abolished since September 1, 2021, still relevant for older situations)

Art. Art. 32

A hedge between two yards is deemed to be common, whether only one of them is closed or unless the contrary is evident from a title or sufficient possession.

Art. 33

A common fence must be maintained at common costs; the neighbor can avoid this obligation by renouncing the obligation.

Art. 34, third paragraph

The co-owner of a common hedge may remove it up to the border of his property, under the obligation to build a wall on that border.

Art. 35, first paragraph

High-stemmed trees may only be planted at a distance determined by permanent and recognized use; In the absence of such use, tall trees may only be planted two meters away, other trees and living hedges only half a meter from the dividing line between two yards.

Art. 36

The neighboring neighbor can demand the felling of trees, hedges, shrubs and shrubs that are planted at a shorter distance than the law stipulates.

Art. 37, first paragraph

A person over whose property branches of trees of a neighboring neighbor hang, may force the neighboring neighbor to cut off those branches.

Abolition and transitional provision

Art. 31 of the law of 4 February 2020 containing Book 3 "Goods" repeals articles 29 to 34, 35, 36, 37, 38 and 39 in the Field Code.
Art. 37 of the same law establishes the respectful effect: the new rules apply to situations that date from after their entry into force on September 1, 2021.

This text is purely informative and does not constitute legal advice. The legislation mentioned may have changed since publication. We accept no liability for the use of this information; For tailor-made advice, we recommend that you contact us via the contact form below.