Better a good neighbor than a distant friend. Of course, being a good neighbor involves certain obligations. The law states that it is not allowed to cause unlawful nuisance to the owner of the neighboring property. Think, for example, of a newly installed dormer window that causes the neighbor's solar panels to spend most of the day in the shade.
The only question is to what extent this qualifies as unlawful. Not every form of shading will constitute unlawful nuisance. What should you pay attention to and what are decisive factors? Eline Holtland-van der Zwaag and Nika Niels list a number of judgments that answer the question: can there be unlawful nuisance caused by working on roofs that deprive daylight?
Neighbor Law
Before looking at judges' rulings, here is a brief lesson in neighbor law. The law states that neighbors may not cause an unlawful nuisance to each other by spreading:
- noise, smell or smoke; or
- by withholding light or air.
Thus, withholding daylight may constitute a nuisance if the nuisance can be considered "unlawful."
Unlawful nuisance?
Whether certain nuisance is unlawful or not varies from case to case. For example, in a busy city center, one must tolerate a certain degree of nuisance: one simply did not choose to live in a "shack on the heath." In short, all the circumstances of the case come into play.
Right to daylight?
There is no set standard for determining whether there is unlawful nuisance by denying daylight. Nor is there an (unlimited) right to have light on all sides. Relevant factors include the:
- nature, severity and duration of the nuisance; and
- the damage caused thereby.
How does the judge rule on ...
Installing a new dormer window
... in the Arnhem-Leeuwarden region?
The Arnhem-Leeuwarden Court of Appeal recently ruled on the question of whether the shadow created by a neighbor's newly installed dormer window on the solar panels of the owner of the neighboring property was unlawful.
In this case, the neighbor had solar panels installed on his roof in 2015. Four years later, the owner of the neighboring property installed a dormer. This dormer cast shade over part of the solar panels for part of the day, making the solar panels a lot less profitable.
It is held by the judge (both at first instance and the court) that the dormer, with its additional shading, does not infringe on the neighbor's property rights. There is no unlawful nuisance. The owner of the panels had to tolerate some shading in this case.
Indeed, as a main rule , a homeowner is free to use a roof as he sees fit, such as by (as in this situation) adding a dormer window. The loss of yield was not high enough to be considered unlawful.
... and in the Amsterdam region?
The Amsterdam court was concerned with a dormer window close to a bedroom window. The resident disagreed and claimed removal of the dormer.
The court placed great weight on the nature of the environment in which the neighbor's view and light were affected. Here there was a busy and densely built-up residence where space was scarce anyway. In such an environment, neighbors generally have to tolerate quite a lot when it comes to nuisance, as in this case.
That the nuisance-experiencing neighbor had lived there longer than the neighbor who had installed a dormer, the judge did not consider of great importance. Indeed, in a busy downtown area, it is somewhat predictable that this nuisance will occur.
Installing new solar panels
Finally, the Gelderland court ruled on the installation of new solar panels.
The neighbor in question had installed solar panels near the eaves, causing the owner of the neighboring property to have more shade in the home. According to the nuisance experiencing neighbor, the solar panels provided about one meter of additional shade during the fall and winter periods.
The court ruled that the installation of the solar panels did not create an unlawful nuisance . For that, the alleged nuisance was not great enough.
Conclusion
The rulings discussed above show that unlawful nuisance is not easily established. The bar is therefore quite high: only in exceptional situations does the nuisance exceed the level that neighbors must generally tolerate from each other.
However, it is advisable to always check, for example, when installing solar panels or a dormer window, how this will affect the light and view of neighbors. Practice shows that prior consultation can prevent a lot of discussions afterwards.
