Neighbourhood law: legal construction of roof terrace by statute of limitations

A roof terrace. Almost everyone wants to have one, but almost everyone finds it annoying when the neighbours put one on and then have clear view. So it’s not surprising that in a densely populated country like the Netherlands there are regular proceedings about the construction of roof terraces. In this blog we look briefly at the conditions under which the construction of a roof terrace is possible or not, and we also discuss a current ruling of the Arnhem-Leeuwarden Court of Appeal on this subject.

In principle, the construction of a roof terrace is not allowed, unless…

Since introduction of the new Civil Code on 1 January 1992, it has not been permitted to have windows or other wall openings, balconies or other similar works (such as, for example, a roof terrace) within two metres of the plot boundary, unless the owner of the neighbouring plot has given permission. If such permission has not been given, the owner of the neighbouring estate shall be entitled to have this unlawful state of affairs terminated. However, if this owner has permitted or tolerated the situation for more than twenty years, that right expires and he will have to tolerate the situation from that moment on. In that case, there will be an easement of prospects.

Transitional arrangement

As far as regulations are concerned, before 1992 it was still permitted to have a lateral view of the neighbouring property, which is no longer the case now (unless the neighbours have given their permission). When the regulations were amended in 1992, there was a transitional arrangement which provided that the owner of the neighbouring estate could demand that the situation be brought into line with the new law. However, the owner of the neighbouring estate had to pay for this himself. This will undoubtedly have been a reason for many people to leave their neighbours’ balconies, for example, untouched at that time.  But if the neighbors then leave the situation untouched for twenty years, there will also be an easement of view.

Case study

  1. became the owner of a semi-detached house in April 2012 (built in 1958). Since 1964 the house has a balcony that protrudes 90cm. A. started rebuilding the house almost immediately after his purchase. He removed the old balcony and built a new extension (protruding 240 cm) with a roof terrace on top of it. The neighbors are not happy with the roof terrace and claim at court among other things that the roof terrace will be removed. The court then agrees with the position of the neighbours and orders A. to remove the entire roof terrace. After all, A. has installed a roof terrace without the consent of his neighbors, which is not allowed under the current legislation.

However, a different judgment would follow in appeal to the court of appeal. The Court of Appeal argued that although the new extension does provide a side view, which has not been allowed since 1 January 1992, it was only in mid-2012 that objections to the extension were raised, whereas before that time there was already a balcony with a side view. Since 1 January 1992, the neighbours have had the opportunity to object to this extension for 20 years, which they failed to do. That is why there is an inheritance of view. However, this servitude of (side) views does not extend beyond 90cm, the length of the old balcony. A. therefore does not have to remove the entire roof terrace, but will have to make the part of his roof terrace that extends further than 90cm inaccessible, according to the court.

The neighbors had also argued that now that A. had removed the original balcony, the easement on the view would have been completely dilapidated. However, because A. had started building a similar structure at exactly the same location almost immediately, the court ruled that this did not mean that A. had renounced his inheritance service to the view. However, this was limited to 90cm.

Conclusion

Building a balcony or roof terrace with a lateral view within two meters of the neighbors’ property boundaries can become legal if one obtains permission from the neighbors or by statute of limitations. In addition, it is also possible to build a new balcony or roof terrace if there is already an easement of view as long as it does not protrude beyond the previous balcony or roof terrace under which the easement is located.

Did your neighbors build a roof terrace without your permission or do you want to build your own roof terrace and ask yourself if this is allowed? Please feel free to contact M2 Advocaten.

Lawyer Ginio Beij (beij@m2advocaten.nl)

picture of a fence

Easement: withdrawal for lack of interest

In the event of a waiver of easement due to lack of interest, the interests of the owner of the serving inheritance do not play a role. In this blog we take a brief look at what these concepts mean and what this means in practice.

Servitude

If an inheritance is entrusted with a right of way, there is an easement for the benefit of another inheritance. This other inheritance is also referred to as the ‘prevailing inheritance’, while the inheritance entrusted with this right is referred to as the ‘serving inheritance’. It comes down to the fact that the owner of the serving estate must allow the owner of the prevailing estate to make use of the serving estate in a certain way. The right of way is by far the most common form of easement, but other forms are also possible.

Servitude may arise through establishment, but also through prescription. In the case of settlement, the owners of the heirs make an appointment for certain use and then have it notarized. In the case of prescription, if someone uses someone else’s property in a certain way for 10 or 20 years, a servitude may arise.

Cancellation of easement

If a yard is in charge of an easement, this sometimes affects the value of the yard or the way in which the owner of the yard experiences his property. It is for this reason that it often happens that the owner of a serving estate tries to have the easement waived. This is possible, for example, if the interest in exercising the easement has lapsed. For example, it may be that the owner of the prevailing courtyard now has a different route over his own courtyard at his disposal.

But suppose the owner of the serving estate also has an interest in waiving the easement? For example, because a new owner of a (serving) farmyard has project development in mind. Do these interests play a role in case of dissolution due to lack of interest? No, the Supreme Court ruled in 2014 that the interests of the owner of the serving estate (except for misuse of powers) do not play a role. It merely concerns the interest of the prevailing inheritance in the exercise of the servitude of the inheritance.

Case study

On top of that, the importance of the prevailing inheritance is assumed fairly quickly. This was also the case in a recent Supreme Court judgment. The owner of the prevailing estate had established a road easement, which means that he may use his neighbour’s plot of land to reach the public road. Originally, the owner of the dominant estate did not have his own way out to the public road, but in the meantime the situation had changed and he had. However, to reach this new road he had to make a considerable detour. This fact was of sufficient weight for the Supreme Court to assume that he (still) had a reasonable interest in exercising the easement. Now it has to be said that in this case the owner of the prevailing estate had to make a detour of several kilometres. It would be interesting to see to what extent the Supreme Court sees it differerently if the distance is considerably shorter.

Are you the owner of a serving courtyard and would you like to have a servitude abolished or would you like to establish a servitude? Please feel free to contact M2 Advocaten.

Lawyer Marius Rijntjes (rijntjes@m2advocaten.nl)