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)

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