Student nuisance: Municipality has to withdraw permission for a roof terrace

Recently we discussed another case in which the owner of a roof terrace successfully appealed against a decision of the municipality to remove the roof terrace. In this blog, however, we discuss a case in which someone successfully appealed against a permit granted by the municipality for a rooftop terrace by the neighbours.

Case

The owner of a property rents his building to students. For some time the students have been using the roof of the building as a roof terrace. However, according to the municipality’s zoning plan, the use of the roof as a terrace is not permitted. Following complaints from local residents, the municipality has informed the owner of the property that enforcement actions will be taken if the use of the roof as a terrace is continued.

The owner of the property then applied for an environmental permit in order to legalise its use. The application includes the construction of a fence on the roof of 185cm in height. The municipality decided to grant the environmental permit despite the fact that a roof terrace is not permitted according to the zoning plan. The planned fencing is also higher than permitted. A neighbour who overlooks the roof terrace from the back of his house, and who claims to experience serious noise nuisance from the students, appeals to the court after the municipality has previously declared his objections unfounded.

Conflict with zoning plan

Many people assume that if a permit has been granted in violation of the zoning plan, the permit was wrongly granted in that case. This assumption is often incorrect. After all, the municipality has the right to deviate from the zoning plan, but must take into account good spatial planning. In short, this means that the competent authority must ensure the maintenance of an acceptable living and residential climate.

In this case, the municipality stated that because it concerns an urban environment, local residents must tolerate some noise nuisance from each other. According to the municipality, the fact that the roof terrace has been reduced in size due to the placement of the fencing also contributes to the reduction of possible nuisance. The municipality also stated that, when granting a permit for a roof terrace, it does not want to make a distinction between use by a family or by students, since that there are also very quiet students.

Ruling

The court states that the municipality should take all the interests involved into account. The degree of noise nuisance is important in this respect. As the municipality indicates, it is plausible that the noise nuisance has decreased due to the placement of the fencing. As a result, fewer people can enter the roof terrace at the same time. However, this has not established that the remaining degree of noise nuisance should be considered acceptable. The court takes into account that the municipality did not take into account the fact that the nuisance providers in question are students with a higher chance of a deviating rhythm of life (night hours), and therefore nuisance.[1] According to the court, the municipality should have taken this into account in its decision. The court annulled the municipality’s decision.

Conclusion

Despite the court’s judgment, the environmental permit for the roof terrace has not yet been definitively dismissed. The municipality will have to take a new decision taking into account that the roof terrace will (mainly) be used by students. The municipality could also attach conditions to the use of the roof terrace by, for example, prohibiting the use of the terrace after a certain time. For local residents, the lack of conditions could therefore also be a means of challenging the municipality’s decision. In any case, it seems that municipalities will have to take more account of the presence of students in maintaining an acceptable residential and living climate in their policy.

Do you also suffer from noise nuisance from neighbours, for example, or do you disagree with an environmental permit granted to your neighbours? In that case you can contact M2 Advocaten without engagement.

Lawyer Ginio Beij (beij@m2advocaten.nl)

[1] Also see ECLI:RVS:2018:2276 en ECLI:NL:RVS:2012:BV3229

warning sign mind your neighbors thank you

Apartment law: Nuisance caused by room rental

Unfortunately, neighbors and nuisance often turn out to be a recurring combination. Not in the least when the adjacent house has been made available for room rental to students. In a case handled at the District Court of Amsterdam, the neighbour of the floor below appealed to the deed of division, which states that the apartment may only be used as a dwelling. The question is whether room rental does or does not fall under the term ‘dwelling’.

An apartment owner rents out separate rooms of his house to four students. As a result, the sub-neighbour experiences quite a lot of noise nuisance. The neighbour states that the students play loud music and receive a lot of visitors in the evening hours, causing noise in the apartment and stairwell late at night. These complaints are substantiated with an expert report and statements from the ground floors.

Are you fighting with a deed of division?

The neighbour states that the apartment owner does not comply with the deed of division which states that the apartment must be used as living space. According to the neighbour, the term ‘living space’ in this case means an ‘independent living space’ (just like in the administrative housing act) and room rental is therefore not allowed. If room letting is prohibited according to the demerger deed, the neighbour can take this as an opportunity to apply for a ban. In this case, however, such a ban on room rental was not directly included in the demerger deed or the demerger regulations. The definition in the Housing Act simply does not apply in this case, according to the District Court.

What the District Court can do is to examine whether it can be ruled according to objective standards that the parties have agreed that renting rooms is not permitted. This objectivity is an important condition because third parties must also be able to rely on the contents of the deed of division when inspecting it. In this case, the District Court did not find any leads in the deed of division and the demerger regulations that would show that it was once intended to prohibit room letting. In short, the neighbour could not demonstrate that the apartment owner with room rental was in violation of the demerger deed.

Unlawful nuisance?

Fortunately for the neighbour, he had also held the apartment owner responsible for unlawful nuisance (Article 5:37 of the Civil Code & Article 6:162 of the Civil Code). According to established case law of the Supreme Court, in order to determine whether unlawful annoyance actually occurred, the nature, seriousness and duration of the annoyance and the damage caused by it in connection with the further circumstances of the case are taken into account. According to the District Court, neighbours in an apartment complex will experience nuisance more quickly because they share several walls and floors with different neighbours. This requires, on the one hand, that one should take more account of each other, but, on the other hand, that one should also tolerate some nuisance from each other.

In this case, however, the apartment owner failed to take adequate measures against the nuisance despite knowing about it. The nuisance has also been substantiated by an expert report and is also confirmed by other neighbours. The District Court therefore ruled that there was unlawful nuisance caused by noise. The apartment owner will therefore have to take measures to prevent future nuisance.

If owners of the OA are in agreement, it is safest to include a ban on room rental in the demerger deed in order to prevent a lawsuit such as this.

Are you also struggling with nuisance from neighbours or would you like to rent out your apartment room by room and are you looking for advice? Please feel free to contact M2 Advocaten.

Lawyer Marius Rijntjes (rijntjes@m2advocaten.nl)