Neighbor law for roofing industry: light is not a frivolous issue

Daylight saving time has started and the mercury is also slowly rising. This means that the number of light hours in a day is increasing and it will also stay light longer in the evenings. As a result, your clients or your client's clients may want to have solar panels installed on their roofs just before summer. And your clients' neighbors may want to sit in their gardens longer in the evening. This raises the question: how to ensure that, when building on the roof, sufficient account is taken of preventing shading? Here are some tips to avoid liability.

Liability lies primarily with general contractor

In a construction contract, the contractor is liable for errors in execution. In addition, the contractor has a warning obligation if the client puts down a design or imposes requirements that violate laws, such as the Building Code or neighbor law. If a structure causes nuisance to neighbors, it may result in your client being sued, who will pass this liability on to you as the roofing contractor. It is therefore important to act in accordance with the applicable laws and regulations at all times and check against them in specific situations to avoid liability. Here are a few pointers from the laws and regulations.

The yardstick: unlawful nuisance

Neighbors not infrequently litigate with each other over (lack of) light. Installing solar panels, performing work on an adjoining roof or building a dormer can infringe on the property rights of the owners of the adjacent property. Examples include shadowing or an invasion of privacy due to view. Neighbors can hold each other liable in such a case for causing an unlawful nuisance.

Nuisance is only unlawful if the consequences are too serious by nature, long-lasting and/or extensive. A pre-existing situation is less likely to qualify as an unlawful nuisance. Thus, someone who is going to live next to a soccer stadium will not be able to simply complain about light and noise nuisance; the stadium was already there. Also important: is it urban or rural? And what is the distance from the home of the adjacent property? The question of whether there is unlawful nuisance is often open to debate.

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Taking away light

A neighboring dispute involved the question of whether shade caused by solar panels qualifies as unlawful nuisance. The solar panels had been placed on the roof in such a way that the neighbors had approximately one meter more shadow in the living room during the fall and winter. The judge ruled that solar panels "are now a common part of the built environment." This alone will not easily lead to unlawful nuisance (whether or not the effects of) solar panels. Another story is the removal of light by building too close to a window of the neighbor's house. For hedges and shrubs, the distance to be kept is half a meter and for trees two meters. For other structures, permit conditions or the zoning plan must be followed. If one builds in accordance with these regulations, this is a strong (but not decisive) indication that there is no unlawful nuisance. By asking the following questions in advance, it is possible to reduce the likelihood of liability later:

• Are there any structures on the roof that could result in a restriction of light? What is the distance from the neighbor's house? Is there possible shadowing?
  • If the conclusion is that there is or may be unlawful nuisance, it is advisable to advise the client in writing of the risks in terms of liability. 
• Has a design been created (for example, by an architect)?
  • If so, during the execution of the commission, see if the architect has checked against applicable laws and regulations when creating the design, and if so, act in accordance with the design as much as possible.

Creating light

When creating light by means of a dormer or skylight, the property rights of neighbors and lookout on the property of neighbors can be an obstacle to realizing building plans. On the issue of overlooking, the privacy of neighbors must be taken into account. Dormers can be built permit-free under certain conditions. One of those conditions is that the distance between the dormer and the sides of the roof - where often the neighbor's roof begins - is half a meter. The location and size of a window in combination with the distance from the neighbor's house are especially important. When realizing a window overlooking the neighbor's yard, it is advisable to remind clients and customers that:

1. It is forbidden by law to place a window facing the neighboring yard within two meters of this yard, unless the neighbors give permission;

2. It may be a window, door or balcony, provided that it directly overlooks the neighboring yard;

3. It is indeed possible to place opaque glass in a fixed window (read: without an opening);

4. Depending on circumstances, undue nuisance may still exist.

Easement for light and views

An easement means that the owner of one lot (the servient yard) must tolerate something for the benefit of the owner of the other lot (the governing yard). In case law, neighbors frequently invoke an easement for light and view. A light and view easement may include an obligation to leave the existing light or view unchanged. It is wise to either A) check with your principal or B) through the land registry to see if the parcel is subject to an easement. If so, it will have to be taken into account when performing the work.

Tips

• Check that the brief (the design, the requirements) complies with legislation, any permit requirements, and neighbor law;
• Inventory whether there is an easement on the client's parcel for the benefit of the adjacent parcel;
• Do you expect construction works to cause nuisance? Then always point out to your client the risk that he can be held liable for this, even if the construction works have been realized within the applicable laws and regulations.