Eand sunny southwest facing garden in the big city, who wouldn’t want that. Well, other people want to increase their living space and build up their garden. This may be at the expense of the neighbors’ sunny garden. Can this be done just like that, or can the neighbor who wants to keep his or her sunny yard block the addition?
Green oases in the cities
Amsterdam and other large cities have building blocks with green courtyard gardens. It happens regularly that an owner of an apartment on the first floor wants to extend his home into the garden. This allows him to increase his living area. However, building up gardens does come at the expense of courtyard gardens. The entry of sunlight into the other gardens is hindered: the adjacent gardens become darker, and sometimes sandwiched between fully built-up gardens. In this article, I address the question of whether, and if so, how you can stop a neighbor from building on a garden.
Permits and zoning
In general, a structure must meet the requirements of the zoning plan and other requirements of the municipality. Sometimes an environmental permit (formerly known as a building permit) is required. Sometimes the requirements are light: then no permit is needed. If a permit is required, interested parties, such as neighbors, can object to the municipality and, in certain cases, also prevent construction from starting through summary proceedings (preliminary injunction) in court. But these administrative procedures are not blissful, because the municipality is not there to protect only the interest of the neighbor who loses his sunny garden. In addition, building on the garden may not be prohibited by the zoning plan. Then only recourse to the civil courts can still help. That’s what this article is about. In essence, this is a clash of interests and rights of citizens that the government is outside of. So don’t count on the municipality (unless building is really illegal according to the zoning plan) but go to a lawyer if you are disadvantaged by a neighbor with building plans.
Example: Plan-Zuid, the Amsterdam Rivierenbuurt
Our office is located in Amsterdam in the district of Zuid, and with that neighborhood we have the most experience. The zoning plans in this part of the city give little protection to the cultural-historical values of the green inner gardens that are part of the famous Plan-Zuid such as the large building blocks by architects Berlage, Staal and Van Eesteren in the Rivierenbuurt. That these green inner gardens are worth protecting is shown by the fact that the municipality of Amsterdam was recently rapped over the knuckles by the central government for not properly protecting the planning features of Plan-Zuid. In October 2017, the national government granted protected status to Plan South. The municipality is required to prepare new zoning plans within 3 years. This is now going to happen, but -as far as we know- only for De Pijp.
What does the government say?
In the designation imposed on the municipality of Amsterdam, the Ministers wrote: “In designing the blocks, Van Eesteren wanted to make the open space in front and behind equally large for sufficient accession of light and air.” and: “An important part of the enclosed building block are the inner gardens and courtyards. (…) These interior spaces can reach a considerable size and in that case are seen as semi-public area (…..) This has created maximum sunlight and daylight can fall through a so-called obstruction angle into the garden room of the opposite building block.” . This shows that the green courtyard gardens are architectural values worthy of protection, and that building out homes at the expense of light and air in the Berlage Plan is, in the government’s view, inappropriate. The City of Amsterdam has not yet adopted this line of thinking, and neighbors who wish to oppose building plans will therefore have to take action themselves.
For some building blocks it is already too late
Although the municipality does not share the government’s vision, the designation is an important support for local residents who are confronted with building plans at their neighbor’s house. In the green areas that have not yet been built on, legal action through a lawyer may help. In the older parts of Stadsdeel Zuid, such as the Pijp, it is sometimes already too late. There you can see that many green courtyard gardens have been filled up: there is no green left. In Amsterdam’s Rivierenbuurt this development is only at the beginning: there are still plenty of green courtyard gardens, but in this neighborhood the overbuilding of gardens is on the rise. The neighborhood is entering the danger zone.
If it is a building that has been divided into apartments, it may not be possible to build on the garden under the divisional deed. This deed may also contain other provisions that limit an apartment owner’s ability to change their property. Consider the creation of a roof terrace on a flat roof. However, when amending the divisional deed after obtaining the consent of the other apartment owners, the construction modification is possible. That’s a pretty tough procedure if the other owners are against it. Unfortunately, many subdivision deeds do not provide clarity, and then many owners reason that what is not prohibited must be allowed. Some complexes in Amsterdam-South are being “unpaid,” where apartments are sold as soon as a tenant quits. The tight control of a large owner who rents out the complex and prevents additions to gardens is then gradually lost. Some buyers of first floor apartments consider increasing their living space more important than preserving the green courtyard gardens. For example, a green oasis in the city can turn into a gray mass of stone and asphalt in a matter of years. The upper houses will lose their beautiful views, and the still undeveloped gardens on the first floor will lose sunlight and daylight, and that is not what the famous architects of the Plan South intended. Fortunately, however, there is often something that can be done about it through the civil courts, although quick action is required. Are you on the board of a VVE? Then consider the possibility of setting clear rules in the division deed.
In disputes between neighbors, the rules of the Civil Code (BW) apply. The Civil Code contains important provisions on neighbor law. When it comes to the intention to fill up a garden, Art. 5:37 of the Civil Code is the most important article. The article reads as follows: “The owner of a yard may not cause nuisance to owners of other yards to an extent or in a manner that is unlawful under Article 6:162 of the Civil Code, such as by spreading noise, vibration, odor, smoke or gases, by withholding light or air or by taking away support.”
Building can be unlawful
A main rule of property law is that the owner may use his property without restrictions, so he may also remodel his house or sacrifice his green garden and build it full. But there is an important exception to this: namely, if he causes nuisance by his plans, for example, by depriving his neighbors of light or air. In other words, those in the cramped big city who have a beautiful south- or west-facing garden with ample sunlight access are protected by law from the neighbor who considers such a garden less important than the expansion of his house. This means that a resident who wants to keep his sunlight in the garden can go to court to ask for an injunction against the neighbor’s building plan. This is usually done through summary proceedings, a procedure that provides quick clarity. If construction is spacious, such as in villa neighborhoods or in building blocks with wide and deep gardens, unlawful interference is less likely to occur.
What is allowed and what is not allowed?
The law does not make it clear which form of nuisance is now so serious that it must be considered unlawful. What matters is that in the eyes of the judge, building up the garden causes so much nuisance and disadvantage in the form of taking away light and air that the judge will issue a prohibition of construction in his judgment, or – and even this occurs – will determine that a building must be demolished, with restoration of the old situation. Whether this happens varies from case to case. We have written down a number of leads that are important to the outcome of the case and have predictive value on the outcome.
Lawsuits regarding a construction ban for taking away sunlight and air through a remodel are difficult to predict, and published judgments are not readily comparable because every construction situation is different. However, in general, you can mention a number of aspects that affect the chances of success of a lawsuit to prevent construction. We have created a “catalog” of leads to help assess the likelihood of success in a lawsuit.
- Precedent: if a building block is well-preserved, a green oasis in the city with fences instead of walls, a ban on building a garden full will be more likely than if almost all the gardens are already full.
- Number of participants: if several neighbors or apartment dwellers are inconvenienced and resist, the ban will have a better chance in court than if only the first floor resident who is directly inconvenienced resists.
- Location of the garden: a garden facing south, southwest or west has an interest in free sunlight from the gardens on the south/west side where the sun comes from. If the neighbor in question wants to build on his yard, a lawsuit will be more likely than if the neighbor wants to build on the other side. After all, this is not at the expense of the sun.
- Municipal regulations: zoning or other municipal regulations may prohibit construction. Of course, that helps if a neighbor goes to court to stop construction. The reverse is not true: the courts can still prohibit construction if the owner does not violate municipal rules. According to case law, having a valid permit does not mean that construction cannot be prohibited because of nuisance. This is an important rule, because owners who want to build often think that if they have a permit, they can do whatever they want. So that’s a misunderstanding!
- Central government: in the example of the Amsterdam Rivierenbuurt, the Minister granted a protected status because the municipality failed to protect the unique characteristics of the neighborhood. Protecting the green courtyards of Plan South is explicitly named. Special architectural values support residents who oppose building on the courtyards. In a cluttered area, this does not play out.
- The rules of the VVE: sometimes the divisional deed gives a clear regulation, if the building is divided into apartment rights. Unfortunately, ambiguity often trumps clarity. In Amsterdam, some splits are rushed or outdated.
- Owner support: the initiative to stop the neighbor’s construction may come from a tenant who occupies an apartment and is inconvenienced by the neighbor’s intention. It increases the chances of success if the owner-landlord stands by the tenant and participates in the proceedings. Tenant and landlord both have an interest in maintaining sunlight access. In this way, the tenant retains their enjoyment of life and the landlord retains the value of the property. A boarded up, dark home looks bleak and is worth less at future than a sunny home.
- Compensation: it can make a lot of difference to the course of the lawsuit if the owner who wants to build on his garden offers compensation for the damage suffered, a kind of ransom for the nuisance. There are cases that do not end with a construction injunction, but do end with damages. This just doesn’t help protect architectural values and is nothing more than a temporary curtain call.
- Speed of action: if the aggrieved owner does not go to a lawyer until the yard is already built out, a lawsuit to have the structure torn down will have less chance than if a lawyer is brought in when the structure is not yet built. After all, the lawyer can then send another summons letter and announce that if the neighbor does not await the outcome of the lawsuit, he is acting at his own risk and may be faced with the cost of demolition and restoration of the old situation. The judge may take into account that construction is done at one’s own risk if timely warning has been given.
- The width of the garden. A very narrow south-facing garden will lose all its sunlight if the neighbor on the sunny side builds up his plot. But if the garden is wide, perhaps only a small portion of the sunlight will fall.
- The nature of the extension. And higher extension takes away more light than a low extension. A full-size extension is usually about 2.75 high. This takes away a lot of light at the expense of the neighbors. But if not the whole garden is built up, but half, it can already be different, and then it can also make a difference which half is built up: the half that takes away sunlight or the other half, so that there is still sunshine in the garden.
An example from case law
An example from case law makes it clear that a claim is not without a chance, even if the consequences for the building owner are very great. On October 5, 2016, the District Court of Northern Netherlands issued a judgment in a case (ECLI:NL:RBNNE:2016:4439) involving loss of sunlight and daylight. The plaintiff is claiming demolition of a room rental complex that has already been constructed. The amount of sunlight and daylight is significantly reduced and so is the view of the courtyard gardens. The court finds that the nuisance is so severe that demolition of the constructed property is warranted. The owner is sentenced to do so under a forfeit of a penalty with a maximum of € 200,000. What you can’t tell from such a published ruling is how things went on after the ruling. Perhaps the property was indeed torn down to the ground. Another possibility is that the building owner paid the fine and the aggrieved neighbor acquiesced.
If you plan to build on the garden, realize that your neighbors may object and seek an injunction in the civil courts because building on the garden and taking away sunlight may be unlawful. Are you faced with neighbors who want to build the garden full? If so, we can help you with a lawsuit. In case of serious nuisance and loss of sun and light, the judge can prohibit construction.
Written by Marius Hupkes