Neighboring nuisance

“Property is the right to enjoy and dispose of a thing in the most absolute manner, provided that it is not used that is contrary to the law or the regulations. ”(Article 544 Civil Code)

Rita Duffy, Belfast, segregation

1. Neighbors may be harmed by certain nuisance activities and / or exercise of property rights. This does not therefore have to be accompanied by an error, it concerns a so-called error-free liability.

Neighbors nuisance is automatically based on the balance theory. Neighboring owners enjoy their right to property equally, but they must not impose an unreasonable burden on each other. Four conditions must be met in order for neighbor nuisance to occur:

• neighborhood between the properties. These therefore do not necessarily have to be adjacent;
• nuisance or nuisance due to an act or negligence;
• causal link between the neighborhood and the inconvenience or nuisance;
• the inconvenience or nuisance is sufficiently serious, this means that the limit of the normal disruptions of the neighborhood has been exceeded.

2. The sanction for nuisance neighbors means that the balance must be restored. The nuisance must therefore be reduced to the normal burdens from the neighborhood. The judge may, if necessary, impose a periodic penalty payment to encourage the neighbor to reduce the nuisance to within the normal limits.

3. Attention, in order to rely on the article (whereby it is therefore no longer necessary to prove an error, only that damage is caused by a fact of the neighbor), one does not necessarily have to be the owner. An attribute of property is sufficient. For example, this can also be requested with regard to a property developer who erects a building (he will at least have a building right) or even with regard to the tenant. Whether a contractor who carries out work, and thereby causes damage, can be regarded as a neighbor is disputed. The owner of the building, where the contractor is carrying out his work, can then be held responsible for this on the basis of art. 544 C.C..

4. Some BA (family) policies only provide compensation in the event of error (art. 1382 of the Civil Code) and not by article 544 of the Civil Code. This can then give rise to huge problems. (eg falling from a tree).

5. The amount of compensation may be less. If the damaged property of the claimant already had defects, or vetusity, or if there is a special sensitivity (e.g. when observing nuisance) on the part of the claimant) then the compensation may be considerably smaller than the compensation for liability (art. 1382 BW). There the compensation is total.

6. Damage occurs between neighbors as a result of fire, bad condition of the adjacent building, falling tree. In the latter case, there are also other legal grounds. Initially, a defect in the case (Article 1384 Civil Code). The custodian is liable if that item causes damage. Defect indicates an abnormal behavior of the case. Trees fall over in gusts of wind, and in practice it is often judged in function of wind speeds, but some lawyers have established that judges judge differently on this [1]. In the event of negligence (eg failure to remove a sick tree in time), the responsibility on the grounds of error can even be withheld (art.1382 BW) or 544 BW. Given that an omission or conduct must then be attributable[2] the difference will then be very small

[1] E. Deekrem, note on the Court of Appeal of Antwerp 6.6.2018, TBBR / RGDC 2020/5, pg 296

[2] Court of Cassation, 24.6.2019, TBBR/RGDC5,pg. 319