In a case that served before the North Holland District Court, the question was whether an extension should be (partially) removed because it is 11 inches on the neighbour's property. The answer is "yes.
Property is the most far-reaching right a person can have over a thing. If someone's property right is infringed upon, it should be properly recorded to avoid any misunderstanding. The neighbours had entered into an agreement stating that the exterior wall of the addition to be constructed could be located on the property line. That agreement does not state that building over the property line is allowed. It is therefore an illegally built extension. In principle, demolition will follow.
In order to prevent demolition, an appeal is made to Article 5:54 paragraph 1 of the Civil Code. Pursuant to this article, an owner of a building partially built on someone else's plot may claim that an easement to maintain the existing condition be granted to him against compensation if he would be disproportionately disadvantaged by removal of the projecting part than the owner of the plot would be by maintaining the projecting part. It is also possible to opt for transfer of the piece of land on which the overhang has taken place. The court rules that there is no disproportionality because the cost of modifying the overhang is approximately € 10,000. The amount of that sum is not such that modifying the extension is disproportionately burdensome. It is also important to note that the choice was made to build on the neighbour's plot without making clear agreements beforehand. In an attempt to prevent demolition, an appeal was also made to Article 3:13 of the Dutch Civil Code, or misuse of rights. However, the court ruled that it had not been sufficiently demonstrated that this was the case. Especially in light of the fact that ownership is the most far-reaching right a person can have over an object.
All things considered, the court ruled that the extension must be removed within three months, concerning the portion on the neighbour's land, on pain of a penalty payment.
Would you like to know more? Then please feel free to contact Jaap van Beijsterveldt or any of the other members of the Property, Construction & Environment section.