Those who inform themselves about the legal conditions around the garden fence can avoid unnecessary disputes with their neighbours.
Neighbourhood can be harmonious and sociable. But not infrequently a quarrel is literally broken from the fence. Who doesn’t remember the famous smash-pea bush, to which Stefan Raab even dedicated a song. The garden fence becomes a point of contention because no one is really informed about the regulations concerning jurisdiction. Which neighbour actually has to build a fence where and do garden owners have to build a fence at all? In the following we would like to bring some light into the darkness and pave the way for a harmonious togetherness.
Disputed object garden fence
Every year, judges in the United States have to pass about 300,000 judgments dealing with neighbourhood disputes. Objects of dispute are noisy garden tools, heaps of leaves, music sounds, branches and bushes or the garden fence itself. So that the garden remains what it should be, an oasis of peace and relaxation, you should inform yourself locally about the legislations of the individual federal states, because here there are some differences.
What does “local” mean?
The local custom determines how high fences may be erected. Take a look around your residential area or garden. If fences and hedges about one metre high predominate there, it is not customary for you to consider building a fence two metres high. If the enclosures are of different heights, the local custom cannot be determined at first glance. Then the neighbourhood laws of the individual federal states will take effect.
Some examples of the customary location of enclosures:
Hesse, Lower Saxony, Saarland
1.25 meter high wire mesh fence
1.20 meter high wire mesh fence
two meter high fence
Fence is not the same fence
The term garden fence is not to be taken here however so exactly. It merely serves as a synonym for the demarcation of two properties. In fact, there are several ways to demarcate a property:
With a fence the property is delimited to the outside. This is done as a protective measure against prying eyes, against people and animals entering the property and as protection against sun, wind or noise.
This includes garden walls or garden fences made of wood, stone or wire mesh. These are building structures that may have to be approved under building law.
Border fortifications are both dead and living enclosures located on the immediate property boundary. Structural changes or the removal of the fence require the consent of the neighbour.
Slope plots are often secured by retaining walls. For retaining walls, regulations deviating from the enclosures apply, which can be found in the respective building regulations of the federal states.
The function of privacy fences does not differ from that of enclosures. A privacy fence can be made of a wide variety of materials. High privacy fences become building structures and require a permit.
View into the Civil Code
Anyone who wants to consult the Civil Code in order to obtain certainty about the garden fence dispute there will not find what they are looking for. No rules have been laid down on the subject of enclosure. But you can read there: “The owner can proceed with the matter as he pleases.” A plot of land can therefore be fenced in, but does not have to be.
“Tip: In § 921 and §922 BGB the enclosure on the property boundary is dealt with.
The individual federal states have made additional provisions regarding enclosure in their neighbouring legislation.
Only in the following federal states there are no corresponding regulations:
- Mecklenburg-Western Pomerania
Who is responsible for the garden fence?
This question cannot be answered in one sentence. The federal states have found two different approaches for determining responsibility at the fence. This is referred to as a common enclosure and a right-wing enclosure.
The common fencing is taking hold:
- North Rhine-Westphalia
The right fence is law in:
- Lower Saxony
This law states that a landowner, at the request of his neighbour, must fence in the right-hand boundary of the plot as seen from the street. The fence of rights was taken from the Prussian General Land Law and is intended to enable an equal distribution of costs and maintenance between the individual parties.
Enclosure is a private matter
Only when the neighbour wants the fence to be built does the legal obligation to fence in take effect. If the fence construction is required, the neighbour can also announce this orally.
“Tip: In order to avoid disputes at the fence, it is advisable to write the fencing request in writing and have it signed by the neighbour.
A fencing obligation to protect the neighbor applies in:
- in outdoor areas also in Baden-Württemberg
A local general fencing obligation exists in:
Developed or commercially used land in urban areas must be fenced in:
- Lower Saxony
- North Rhine-Westphalia
There is no fencing obligation in the following countries:
- Baden-Württemberg urban
- Mecklenburg-Western Pomerania
Brief answers to the most important questions
Do I even have to build a fence?
Every American citizen has the right to erect a fence in order to demarcate his property and to protect it from unauthorised entry (BGB § 903). You are only obliged to build a fence if your neighbour insists on clearly delineating the plots of land from each other. Most of the federal states have made individual regulations in this regard in building and neighbourhood law.
Which side of the fence am I responsible for?
Property owners have to provide a demarcation on the right side of the main entrance. No regulations apply if the main entrances to the neighbouring properties are on different street fronts. The demarcations at the rear entrance are also not subject to the statutory obligation. Here the neighbours should agree on a regulation.
How high can my fence be built?
Here you should inform yourself in advance about the dimensions of the enclosures defined by the individual federal states as customary for the location. Usually, heights of up to 1.25 metres are considered acceptable. High walls and fences shade the neighbor’s property. He does not have to accept this and can demand the removal of the fence.
How can I tell which side of the fence it is?
If the fence was already there and you are not sure whether you are responsible for it, look at which side there are columns, bricks, slats or stones on. This usually marks the ownership claim.
Uninvited guests – trespassing yes or no?
If a property is provided with a fence, everyone who passes this demarcation against the will of the owner commits trespass against the house (§ 123 StGB). The property boundary must be made clear. It is irrelevant whether it is a fence several metres high or just a low stone wall or hedge.
The most popular controversial topics on the fence
In summer, smoke and stench on the garden fence quickly become a controversial topic. Grill evenings in summer should not be exaggerated. Five barbecue evenings per season are considered acceptable by some judges. In Brandenburg, barbecuing is only permitted if the smoke cannot penetrate into the windows of the neighbouring properties.
“Tip: If you invite your neighbour to barbecue in the garden more often, he will hardly complain.
Nobody can object to kitchen smells. You do not have to tolerate the stinking compost heap if it is located directly at the garden fence.
❖ Plants that grow above your head
Nothing stands in the way of garden design at your own discretion. In allotment gardens there may be certain restrictions under certain circumstances. These can be found in the respective statutes. If you plant trees and shrubs, it is worth taking a look at the regulations of the federal states in advance. Certain distances from the neighbouring garden must be maintained.
“Tip: Two metre high hedges must be planted at least 50 centimeters from the neighbouring garden.
Branches that grow over the garden fence and root runners that make their way can be tackled (§ 910 BGB). The owner is obliged to prune the trees and cut the root runners. But only outside the gardening season, more precisely between October and February.
“Tip: Fruit may be collected when the branches hang over the fence.
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There is nothing wrong with a garden party, after all, partying is just as much a part of the gardening season as gardening itself. However, the party-goers have to make sure that the volume is kept at room level from 10 p.m. on. This means to move the party into the house or to reduce music and conversations significantly. Otherwise, the neighbors have the right to call the police. They’ll be fined for disturbing the peace at night.
❖ Rest periods
Already in the year 2002 a regulation came into force, which limits the use of garden tools. Hedge trimmers must not be operated on Sundays and public holidays and must be switched off from 8 p.m. on working days. Vacuum cleaners may only be switched on between 9 and 13 and 15 to 17 o’clock. The municipalities and allotment garden associations have often made their own regulations regarding the midday rest.
Animal husbandry should be carried out in such a way that no neighbours feel disturbed by noises or odours. For dog owners strict rules apply, a court has limited the barking of the quadruped in a verdict to half an hour daily. For the quacking of a frog in a garden pond, even 1,500 dollars of noise compensation money were due. Cats must be tolerated. If there are more than two animals permanently in the garden, a fence may be required.