Neighbor law and unlawful nuisance
According to Article 5:37 of the Civil Code, it is not allowed for neighbors to cause unlawful nuisance to each other, such as spreading noise, smell or smoke, or withholding light or air. Thus, the lack of daylight can be a nuisance. But, not all nuisance is unlawful. Whether a nuisance is actually unlawful depends on the specific circumstances of the case. For example, one must take into account the environment in which one is located; after all, a certain degree of nuisance is expected in a busy city center. In other words, all factors of the situation play a role in the consideration. Once the nuisance can be considered "unlawful," the aggrieved neighbor can invoke the above article.
Then, of course, the question arises: when is unlawful nuisance caused by withholding daylight? There is no fixed standard for this. What is clear is that one does not have an unlimited right to light. Important aspects to consider include the nature, severity and duration of the nuisance, as well as the damage caused by the nuisance. Below I discuss some cases before courts in which an appeal was made to Section 5:37 of the Dutch Civil Code.
How does the court rule on the installation of a roof structure....
... in the Rotterdam region?
Very recently, the District Court of Rotterdam ruled on the question of whether a roof structure caused unlawful nuisance. The building plan consisted of the realization of a roof construction of about 2.7 meters high, with two accompanying roof terraces of a few square meters. The owner is granted an environmental permit. The neighbor objects to this permit. The building plan is modified: the roof structure remains the same height, but its surface area is reduced. Incidentally, a roof terrace is realized. The neighbor takes the position that both the first building plan and the second building plan cause such nuisance that it constitutes unlawful nuisance. The unlawful nuisance consists, according to him, of reduced light incidence, but also disruption of the view and infringement of privacy due to peeping-in.
The court here ruled that the roof structure did indeed affect the light in the house to some extent. However, the owner has tried to limit this by adjusting the building plans and making the area smaller. Only a limited portion of the house is shaded in summer, even a smaller portion in winter. The judge then still has the option of ruling differently based on the balance of interests. Unfortunately for the neighbor, the balancing of interests did not fall in his favor either. The court took into consideration that the owner had a major interest in the construction, namely family expansion, whereby he cannot be required to further adjust his plans. Since it was mainly the kitchen in which the incidence of light was reduced, and this is not the room where people mainly live, the court held that the restriction of light was not unlawful.
... in the Amsterdam region?
Last year, the Amsterdam court also ruled on unlawful nuisance for depriving daylight, this time in the case of construction plans for a roof structure at an apartment building. The building contains 16 dwellings located on the first and second floors. In the middle of these deep, narrow dwellings, a patio has been situated for the purpose of gaining light. One of the apartment owners has applied to the Owners' Association (VvE) for permission to build a structure on her roof patio. According to established protocol, this requires a vote by all apartment owners. The apartment owner did not receive permission for the construction from the VvE and asked the court in Amsterdam to annul this decision and to grant the applicant a substitute authorization to place a construction on her roof terrace.
The district judge rejected the apartment owner's request. It took into account in its judgment that, due to their design, the apartments are highly dependent on the patio for the entry of daylight into the apartments. This means that the proposed roof structure could affect the neighbors' living enjoyment because of a reduction in daylight, among other things. The subdistrict court also ruled that this could even lead to a reduction in the value of the other homes.
... in the Hague region?
Not much later than the District Court of Amsterdam, the District Court of The Hague also ruled on a similar case. Again, the central issue was whether one of the apartment owners was allowed to construct a roof structure on the apartment building. Part of the installation of the roof structure was the removal of a number of skylights from the roof. In this dispute, the apartment owner did receive permission from the VvE to construct the roof structure. Some apartment owners objected to this.
One of the apartment owners takes the position that the removal of these skylights from the roof, without specifically obtaining permission, constitutes unlawful nuisance. Indeed, the removal of this skylight and subsequent installation of a roof structure eliminated daylight in two rooms of his apartment. Moreover, according to the apartment owner, retaining the skylights would be a requirement for issuing a permit so that these rooms could be rented out as (student) rooms. This possibility was now taken away from him. The subdistrict court ruled, however, that there was no unlawful nuisance here, because it was not sufficiently clear that these skylights were a requirement for renting out the rooms. Moreover, permission was given for the installation of the roof structure itself, so no additional permission was needed for the removal of the skylights.
Conclusion
In the case of a roof structure, a judge will not easily rule that there is unlawful nuisance because of the withholding of light. This bar is quite high. This does not mean that there will never be unlawful nuisance. After all, each situation must be carefully assessed on its own merits. When installing a roof structure, it is advisable to always check what this does to the light and view of the neighbors. Prior consultation with the neighbors can ensure that disputes about this can be avoided.
