Roof gardens and neighbor law: how to create views and avoid hopelessness?

Spring has arrived. This means that soon it will be warmer, roof gardens will be blooming and need to be maintained. For you, this means that your customers may want to have their roof gardens fertilized, planted or otherwise maintained, for example. Or perhaps you are establishing new roof gardens, for example, on new construction homes. Whatever the case, your customers will no doubt want to enjoy a nice view from their roof gardens this summer. However, a view for some can mean privacy for others. Therefore the question: how to ensure that the view from your client's roof does not unlawfully infringe on the neighbor's property rights?

Neighbor law: property and privacy

Light and views are topics that have long occupied a prominent place in neighbor law. This has to do with the fact that the right of ownership of an immovable property (read: land with buildings on it) also gives the owner the right to privacy. Owners of adjoining (read: adjacent) plots will therefore have to respect each other's privacy. If the neighbor creates shadows or views and this takes away too much of the neighbor's privacy, this may lead to a violation of her property rights. In this blog, we provide some guidance on how to make views from roof gardens comply with neighbor law. If you also want to advise your clients in the performance of your work about light views, please see an earlier contribution by Maarten Finkers(Roofs 2021, no. 66: Neighborhood law for the rooftop industry: Light views are not a light issue).

Roof gardens in neighbor law

Especially when creating a new roof garden, many regulations must be taken into account. Think in public law terms of a building permit and the prevailing zoning plan or in private law terms of neighbor law. In this contribution, we focus on neighbor law. And that is necessary, because in the past five years alone, more than 50 (!) court decisions have been published on views of the neighboring property from a roof (note: not all decisions are published). For us, this shows that things still go wrong too often in practice.

On the one hand, this creates a risk for main contractors; they run the risk of being held liable for errors in the execution of the contract. On the other hand, this creates an opportunity for main and subcontractors to make a difference in good advice. Based on your advice, clients can make the right choices in their spatial plan. In other words, you can prevent disputes between your clients and their neighbors from the outset. That may sound nice, but how do you do it?

Four checkpoints

The law contains the following four checkpoints:

1. unless the owner of the neighboring property gives permission;
2. It is impermissible to be within two meters of the boundary line;
3. have windows, other wall openings, balconies or similar works;
4. insofar as this gives a view of the neighboring yard.

✔ 1. Unless authorized by the neighbors

If your clients have permission from the neighbors, that makes review of the other three requirements unnecessary. We take the position that asking your neighbors for permission in advance is therefore always preferable. If the neighbors are willing to do this (whether or not for a fee), it is possible to have this recorded in various ways. In principle, there are no formal requirements. Therefore, the simplest (and cheapest) variant is to draw up a contract. In it, neighbors can record that permission has been granted to create a roof garden up to the property boundary.

Tip: have the contract drawn up by a lawyer and include the spatial plan as an appendix. This often prevents discussions afterwards. However, the disadvantage of a contract remains that it can often be interpreted in several ways (even if the contract is drawn up by a lawyer). A more stable alternative is to establish an easement. This is a right that can oblige neighbors to tolerate your clients having a roof garden within two meters of the neighboring yard. This right is registered by the notary in the public records.

✔ 2. Within two meters of the boundary line

Thus, to the extent that the permission allows it in substance, it is possible to realize a roof garden within two meters of the property boundary one of the neighbors. In the absence of such permission, a roof garden can only be realized within the legal framework. This means that the roof garden must be at least two meters from the boundary line. Briefly, this distance should be measured as follows: rectangular from the work closest to the boundary line. If a roof garden is located within these two meters, the neighbors can claim removal of the prohibited condition. Specifically: the work you have done on a roof must be demolished again. This is different only if the neighbor's yard is a public road or water. For this reason, we recommend that you always measure these two meters accurately before performing the job.

✔ 3. Similar work

The law specifically mentions that the two meters applies to views from windows, wall openings, balconies or similar works. Roof gardens are not included in windows, wall openings or balconies. Therefore, the question is whether roof gardens are a "similar work." If roof gardens are designed as roof terraces, they will generally qualify as similar works. If a roof garden exists in the form of a flat roof, then you might rightly wonder whether it is a work. However, the Supreme Court has ruled that flat roofs can also be similar works, and moreover, the lower case law interprets the term "work" broadly.

✔ 4. View of the neighboring yard

In our opinion, whether roof gardens that are also flat roofs qualify as similar work will depend on whether the roof garden in question actually provides a view of the neighbor's yard. After all, this part of neighbor law aims to protect privacy. If there is no view of the neighbor's yard, there can also be no violation of their privacy. Generally, two types of roof gardens exist: walkable and nonwalkable. Since only walkable roof gardens can provide a view of the neighbor's yard, therefore only those will qualify as similar work. This visibility criterion also applies to other works located around a roof garden. For example, the Court of Appeal of 's-Hertogenbosch ruled that a planter at height is not a similar work subject to neighbor law, because a planter "is not intended to be entered by people." As far as we are concerned, this reasoning can be extended to all objects that are not intended to be entered by people. Think of fountains, statues or other decorative objects. In principle, these may be placed within two meters of the property line.

Three tips

1. Use dive garden design to comply with neighbor law

It follows from case law that works that are not intended for people to enter do not qualify as similar work. Therefore, in our opinion, these objects may be used as partitions. Objects such as plants or fences may therefore be placed within two meters of the property boundary. This statement leaves room for creativity. For example, a fence or planting that completely removes the view of the neighbor's yard can reclaim meters of walkable roof garden. Or if your customers want to preserve the view, it is still possible to fill the two-meter area with plants or the like. In other words, there are plenty of ways to utilize the two-meter zone anyway, even if the neighbors do not give their permission. 

2. Check statute of limitations on pre-existing works

This tip looks at roofs that have been in use as walkable roofs for 20 years or more. Consider the situation where you receive an order to convert a flat roof terrace to a roof garden. In such cases, you may not have to consider the two-meter zone. This is because the neighbors' legal claim to demand the removal of the unlawful situation - trespassing on the two-meter zone - may be time-barred. On the contrary, your clients, as owners of the walkable roof, may have acquired a right to claim that works within two meters from their boundary (i.e.: including the two-meter zone) that obstruct are removed. This is a special kind of prescription for this reason: a legal claim expires and an obligation comes in its place (normally only a legal claim expires). In our opinion, this could even give neighbors reason to give conditional permission to use the two-meter zone after all. In fact, conditional permission could prevent prescription.   

3. Check the subdivision deed in the case of apartment rights

Should you be tasked with creating a roof garden on the roof of an apartment complex, advise your client to thoroughly check the subdivision deed to see if the work is actually permitted. Sometimes the subdivision deed includes an exclusive right to use the roof. If so, then there is nothing to worry about. However, if the division deed makes no mention of this, restrictions most likely apply. In these cases, permission from the Owners' Association (VvE) will almost always be required, as the roof is part of the common parts. If this permission is not granted, the VvE can demand demolition.

Are you in doubt about whether a walkable roof violates neighbor law? Then contact Eline Holtland - van der Zwaag, Maarten Finkers or one of our specialists at Poelmann van den Broek.