Can I cut or eat the fruit that falls from my neighbor’s tree?

One of the private law restrictions on the right of property has to do with the planting of trees and bushes, aiming to prevent that the planting of trees and bushes cause harm to the owners of the neighboring buildings.

Article 1366, no. 1 of the Civil Code, which allows the planting of trees not excluded by no. 2 – eucalyptus, acacia, among others – up to the dividing line of the buildings, nevertheless gives the owner of the neighboring building the right to uproot and cut the roots that enter their land and the trunk or branches on it, if the owner of the trees, having been judicially or extrajudicially summoned to take these measures, does not do so within three days.

Accordingly, the owner of the invaded building cannot exercise this right without previously notifying the owner of the trees, since article 1366, no. 1 of the Civil Code only allows its exercise after the latter has previously requested the owner of the trees to take such action, and the latter has not done so within three days.

The power conferred to the owner of the neighboring building legitimizes the recourse to the self-protection right of their property, after a request has been made to the owner of the trees and the latter has not fulfilled his duty to prevent them from causing damage to the neighboring building.

But there are cases in which the owner of the building where the roots are intruding is unable to cut them down, either because the trees are next to walls or to urban buildings, in which the infiltration of the roots can cause damage, and they cannot comply with article 1366, no. 1 of the Civil Code. In these situations, the courts have admitted that the injured owner may compel the owner of the trees to perform the steps necessary to prevent such damage, requiring the cutting of the roots or trees if this is necessary to safeguard their interests.

The owner of a tree or shrub adjoining or bordering another person’s building may require the owner of the building to allow them to pick the fruit that cannot be picked by the former; but they are liable for any damage the picking may cause.