Problems with the neighbours? What came before
Before 1 September 2021, neighbour nuisance was not governed by a separate, explicit legal framework in the Civil Code.
If you had a dispute with your neighbours, you had to rely on the general rules of non-contractual liability and on case law relating to neighbour nuisance. The traditional rules in this area were, quite remarkably, derived from the basic article that defined the limits of ownership rights: article 544 of the old Civil Code. That provision stated as follows:
“Ownership is the right to enjoy and dispose of things in the most absolute manner, provided that no use is made of them that is prohibited by laws or regulations.”
Over time, an entire legal doctrine developed on the basis of that article, supplemented by case law from the Court of Cassation.
In that context, the well-known Chimney judgment of the Court of Cassation played an important role. In that judgment, the Court held that article 544 of the old Civil Code grants everyone an equivalent enjoyment of their property rights.
From that, it was inferred that the balance between neighbouring properties must be maintained. Since that case law, neighbour nuisance could therefore be addressed not only through the general law of non-contractual liability, but also through the balance doctrine developed under article 544 of the old Civil Code.
The old regime for neighbour nuisance
Under the former system, in order to bring a claim based on article 544 of the old Civil Code, three conditions had to be met:
- Excessive nuisance: this meant that the nuisance had to go beyond the normal inconveniences of neighbourhood life. It had to be excessive to such an extent that the balance between neighbouring properties was disturbed. The assessment of whether the nuisance was excessive was, and still is, a factual matter for the judge. In that concrete assessment, the judge took and still takes into account factors such as location, timing, prior use and the specific context.
- Neighbourhood relationship: this did not only concern owners of adjoining plots. It was sufficient that the properties were located close enough to one another to qualify as neighbouring properties.
- Attributability: there had to be a link between the nuisance and the neighbour one intended to hold liable. In other words, the nuisance had to be attributable to that neighbour’s conduct, omission or situation.
Unlike fault-based liability, liability based on neighbour nuisance was no-fault liability: the neighbour causing the nuisance did not need to have committed a legal fault in order to be obliged to restore the disturbed balance.
Claims relating to neighbour nuisance were subject to the applicable limitation rules for non-contractual claims.
The remedy in cases of excessive neighbour nuisance was not necessarily full compensation for the damage suffered. The focus was on granting appropriate compensation in order to restore the balance between neighbouring properties. That differs from a classic fault-based liability claim, where the starting point is full compensation of the damage.
That distinction remains relevant today: anyone who believes that the neighbour is not only causing excessive nuisance, but has also committed a fault, may still consider a separate claim under the law of non-contractual liability where appropriate.
The new framework for neighbour nuisance: what changes?
The reform of property law is based on several key principles, including modernisation, flexibility and a more coherent approach to property law.
For neighbour nuisance, the main point is that the previous case law of the Court of Cassation and legal doctrine have now largely been codified in articles 3.101 and 3.102 of the Civil Code.
Excessive neighbour nuisance
What exactly does “excessive neighbour nuisance” mean? The basic principle remains that people must tolerate the normal inconveniences of living next to one another. In order for nuisance to qualify as excessive, it must therefore go beyond what neighbours normally have to tolerate from each other.
To provide more guidance, article 3.101 of the Civil Code expressly states that account must be taken of all the circumstances of the case, such as:
- the timing of the nuisance
- the frequency of the nuisance
- the intensity of the nuisance
- the prior use of the property
- the public purpose of the immovable property from which the nuisance originates
When it is ultimately established that there is indeed excessive nuisance and that the balance between two plots has been disturbed, the judge will determine which measure is appropriate to restore that balance. Article 3.101, section 2 of the Civil Code includes the following options:
- Financial compensation for the excessive nuisance.
- Compensation for the costs of mitigating measures on the affected property in order to reduce the burden to a normal level.
- An order to stop the disturbing activity or to take measures on the property causing the nuisance, insofar as this does not create a new imbalance and does not exclude normal use and enjoyment of the property.
The court therefore has several tools available to restore the balance between neighbours in a practical way.
It is also important to note that the statutory framework is not only relevant between full owners. Article 3.101, section 3 of the Civil Code provides that the regime may also apply, under certain conditions, where one or both neighbouring immovable properties are burdened with a right in favour of a third party who exercises an attribute of ownership and where the nuisance can be attributed to the exercise of that right.
Preventive action
An important innovation introduced by the legislator is that, under strict conditions, action may already be taken at the preventive stage. In practical terms, this means that you do not always have to wait until the damage or nuisance has actually materialised.
Article 3.102 of the Civil Code provides that where an immovable property creates serious and manifest risks regarding safety, health or pollution for a neighbouring immovable property, thereby disturbing the balance between the immovable properties, the owner or user of that neighbouring property may request preventive measures before the court.
There must therefore be serious and manifest risks. A purely hypothetical risk will not be sufficient.
One important update since 2025
Since 1 January 2025, Book 6 “Non-contractual liability” of the Civil Code has entered into force for events occurring from that date onwards. As a result, the former articles 1382 to 1386bis of the old Civil Code have been repealed.
This is especially relevant in situations where excessive neighbour nuisance is combined with fault on the part of the neighbour. In that case, for new events, one no longer refers to articles 1382 and following of the old Civil Code, but to the current rules of Book 6 of the Civil Code.
Conclusion
The legal framework for neighbour nuisance is now more clearly anchored in legislation than before. Since 1 September 2021, the basic rules have been set out in Book 3 of the Civil Code, more specifically in articles 3.101 and 3.102. Since 1 January 2025, Book 6 of the Civil Code must also be taken into account for general non-contractual liability.
Anyone dealing with neighbour nuisance should therefore make a distinction between:
- the no-fault balance doctrine for excessive neighbour nuisance, aimed at restoring the disturbed balance;
- non-contractual liability based on fault, which may also come into play where wrongful conduct is involved.
Which claim is most appropriate will always depend on the specific facts, the nature of the nuisance and the available evidence.