What is the neighboring right?
According to Section 903 of the German Civil Code (BGB), owners have the right to deal with an object as they see fit and to exclude others from any influence. If the effects of the action affect other properties in the vicinity, this leads to a conflict with the rights of the owners. Such conflicts can be reconciled by mutual consideration and toleration of the impact. Neighboring rights are the totality of norms that regulate the relationship between property owners. The goal is peaceful coexistence between neighbors.
Where is neighbor law regulated?
Neighbor law is made up of a large number of regulations under private and public law.
The regulations are not unrelated to each other, but are basically of equal importance.
Private neighbor law regulates the relationship between two neighbors. This is regulated in §§ 903-924 BGB and § 1004 BGB and applies uniformly to all federal states.
In contrast, public neighbor law also involves the administrative authority in the neighborly relationship. Neighbor-protecting regulations are to be assumed if a regulation protects individual interests.
Public neighbor law is essentially regulated in building law and in the Federal Immission Control Act.
In addition, the individual states can enact neighboring rights laws. Furthermore, regulations can be concretized by statutes of the municipalities.
Further rights and obligations are derived from court rulings in accordance with the law of judges. The law often uses undefined legal terms that require interpretation. The rulings therefore often diverge.
Neighbors can also agree on applicable neighboring rights by means of legal transactions, in particular contracts.
In addition, land registers can provide information on certain easements for neighbors.
Right of defense under Section 1004 (1) of the German Civil Code (BGB)
Pursuant to Section 1004 (1) of the German Civil Code, an owner may demand that an interfering party remove or refrain from interfering. The claim presupposes that the addressee is the interferer of action or the interferer of condition. The impairment must be substantial. The assessment must be based on the perception of a “reasonable” average person and on what is reasonable. The claim is excluded if the owner is obliged to tolerate the impairment. Obligations to tolerate can exist by contract, by operation of law or within the framework of the neighborly community relationship. The claim can then be asserted by way of a defense action.
Obligations to tolerate pursuant to §§ 906 et seq. BGB
Neighborhood law imposes a duty on the property owner to tolerate certain encroachments on his property. In this respect, the obligation to tolerate is subject to the insignificant impairments of imponderable substances according to § 906 para. 1 BGB, the customary use of the property, the overhang according to § 910 BGB, the encroachment of fruits according to § 911 BGB, the overbuilding according to § 912 BGB, the emergency route according to § 917 BGB, the boundary conditions and boundary facilities according to §§ 919-923 BGB, as well as the effects according to the state road laws and from the neighborly community relationship. An insignificant encroachment according to Section 906 (1) of the German Civil Code can result from the limit or guideline values specified in the laws or from administrative regulations, for example, according to the Federal Immission Control Act or the Technical Instructions on Noise.
Compensation claim under neighbor law as a claim for compensation
The claim for compensation under neighbor law in accordance with Section 906 (2) sentence 2 is not legally defined. According to the Federal Court of Justice (BGH), this is the case if a property has an unlawful impact on another property in the course of private commercial use, which is not to be tolerated.
The claim is not dependent on fault and is subsidiary to other claims for damages.
According to a BGH ruling of October 25, 2013, V ZR 230/12, the condominium owner and landlord is entitled to a claim for compensation under neighbor law in corresponding application of Section 906 (2) sentence 2 if a hose connection comes loose in the sterilization room of the defendant’s outpatient surgery center, resulting in a water leak in the practice rooms of the plaintiff’s medical practice.
According to OLG Düsseldorf, Appeal Judgment of January 15, 2002, 4 U 73/01, the neighbor has a claim against the property owner under § 906 II 2 of the German Civil Code (BGB) by analogy if a tree falls onto the neighboring property as a result of a storm of force 7-8, which a healthy tree would have withstood.
Neighborhood Law of the State of Berlin
The neighboring rights laws of the federal states largely coincide in terms of content, but in some cases contain divergent regulations. For example, the federal state of Berlin has also created independent regulations with the Berlin Neighborhood Law Act of 1973, with the last amendment by Article 1 of the Amendment Act of December 17, 2009.
Examples of conflicts under neighboring law
Noise pollution and disturbance of the peace
The volume, time and environment are of essential importance. Neighbors must be particularly quiet in a bright residential environment. A noise level that is customary in the locality must be taken into account. Misunderstandings can arise when moving from the city to the countryside due to mooing cows, crowing roosters in the early morning hours and agricultural vehicles (cf. VG Freiburg, judgement of 22.12.2008, ref. 4 K 2341/0; VGH Baden-Württemberg, judgement of 08.11.2000, ref. 10 S 2317/99).
Different rest periods may apply in the federal states and municipalities. However, night rest applies everywhere from 22:00 to 06:00. Disturbing activities such as lawn mowing, renovation and the use of tools must then cease. On Sundays and public holidays, quiet is to be maintained throughout the day, including the midday rest period from 13:00 to 15:00. Noises from washing machines or vacuum cleaning are to be accepted as socially acceptable noise disturbances (cf. LG Freiburg, judgment of 10.12.2013, ref. 9 S 60/13). There is no midday rest period in Berlin. The noise protection regulations according to the State Immission Protection Act apply. However, quiet times can be determined by rental agreement or house rules.
Children enjoy freedom in their development. The tolerance requirement only concerns children’s noise caused by screaming, laughing or romping as a natural urge to play and move and must be tolerated (cf. AG Hamburg-Bergedorf, judgment of 11.11.2018, ref. 409 C 285/08). Tolerance ends, however, where noise is no longer considered appropriate behavior for children and there is a duty on the part of parents to take educational measures (cf. LG Berlin, judgment of 05.09.2016, ref. 67 S 41/16).
Dogs are allowed to bark and be audible. Decisive factors are duration, frequency and time of day (cf. VG Düsseldorf, Urt. v. 11.11.2014, Az. 3 L 2216/14; LG Mainz, Urt. v. 22.06.1994, Az. 6 S 87/94). A noise log is recommended. In case of disturbances, the landlord is the contact person or the public order office is responsible.
Playing instruments may not be prohibited in a rental agreement. The limit for practicing is two, three hours on weekdays and one to two hours on Sundays and public holidays outside of the midday and nighttime rest periods (see BGH, judgment dated October 26, 2018, Ref. V ZR 143/17).
Trees, shrubs and hedges
If branches, twigs or roots of trees or hedges grow into the neighboring property, the neighbor has a claim for pruning according to Section 910 (1) BGB. However, the claim may become time-barred. In Berlin, too, the limitation period is three years from knowledge of the encroachment. First of all, the neighbor must be set a reasonable deadline for removal. Only when this period has elapsed can he carry out self-help, i.e. prune the tree himself. If the tree dies due to improper pruning, a right to damages may arise.
Who owns the fruit?
Fruit from a neighboring tree may not be picked even if its branches and twigs extend onto the other property. This is because the person who owns the plant also owns its fruit. Otherwise, theft is to be assumed. The situation is different if the fruit falls onto the property because it is ripe. The fruits then belong to the person on whose property they fall, according to § 911 p.1 BGB.
Property boundaries, enclosures and plant distances
An enclosure is an installation for demarcation to the outside in order to protect the property from encroachment (trespassing by people and animals, weather-related influences and views from outside) and to preserve its peace.
There is no federal fencing requirement. However, every property owner has a right to erect an enclosure on his property.
The federal states differentiate between a common enclosure and a legal enclosure. In Berlin, according to § 21 NachbG Bln, the right side of the property as seen from the street must be enclosed if the neighbor demands it. § Section 22 provides for exceptions to the obligation to enclose. §§ Sections 23, 24 describe the nature and location of the enclosure. Only an enclosure customary in the locality or a fence approximately 1.25 m high can be erected. According to Section 23 (2), regulations under public law (development plan or statutes of a municipality) take precedence over the Neighbor Rights Act with regard to the material and height of the fence. Cost allocation and maintenance costs are governed by §§ 25, 26 NachbG Bln.
A distinction is made between dead fencing (fence, wall) and living fencing (hedge).
When planting a hedge as a boundary enclosure, certain regulations must be observed. In Berlin, according to § 28 para.1 NachbG Bln, a distance of 0.50 m must be maintained for hedges less than two meters high and at least one meter for higher hedges. According to § 28 para.2, this does not apply if the neighbors erect the enclosure on the common boundary.
Privacy fences are building structures and may require building permission. A look at the building regulations of the respective federal state or a call to the responsible building authority is recommended. These must not deviate greatly from already existing visual protection measures. Thus, a fence several meters high does not have to be accepted in case of shadows.
The border distances for plants are regulated in §§ 27 ff. NachbG Bln. These are based on the type and height of the plant. Thus, different regulations apply to trees, shrubs and hedges. § 29 regulates the exception to the distance regulations. § Section 30 describes the calculation of the distance. If the regulations are violated, the neighbor can demand the removal of the planting according to § 31. However, this claim expires after 5 years, § 32 NachbG Bln.
Odors from the land
Agricultural odors are customary in the locality and must be tolerated as long as they do not exceed a reasonable level. Thus, the spreading of liquid manure, fertilization or the horse yard will be part of the normal operation of a farm (see OVG Lower Saxony, judgment of 15.06.2017, Az.1 ME 64/17 and 1 ME 66/17, OLG Düsseldorf, judgment of 28.07.1995, Az. 11 U 24/94; AG Neuss, Urt. v. 13.10.1989, Az. 36 C 337/89).
When it comes to barbecuing, it is particularly important for the tenant to know what is stated in the rental agreement or the house rules. There may be individual clauses that prohibit barbecuing on the balcony, terrace or garden or provide for certain barbecue devices (cf. AG Westerstede, Urt. vom 30.06.2009, Az. 22 C 614/09, LG Stuttgart, Urt. v. 14.08.1996, Az. 10 T 359/96; AG Bonn, judgment of 29.04.1997, Az. 6 C 545/96).
Homeowners are restricted by fewer regulations. At least if they have a single-family house on a single plot of land. They do not have to agree with a landlord whether barbecues are allowed and whether a charcoal, gas or electric barbecue is permitted. The State Immission Control Act stipulates a barbecue ban if there is a nuisance due to heavy smoke development. This is to be assumed in the case of health impairment if smoke clouds drift into the living and sleeping quarters of other residents.
Smoking is generally permitted on the balcony or terrace. This falls under the contractual use. In the event of a significant impairment, smoking may be limited in time under certain circumstances (cf. BGH ruling of 16.01.2015, Ref. V ZR 110/14).
Dealing with pets and farm animals
Cats are allowed to enter the neighbor’s property (AG Bonn, judgment of 12.05.2009, Az. 11 C 553/08). However, the obligation to tolerate ends where the neighbor can no longer be expected to do so, for example if the cat defecates there or rummages through the garden beds. With dogs it is different. There, already the unleashed running around represents a violation of property by the dog owner (see LG Berlin, judgment of 07.12.2016, Az. 35 O 251/16).
Attempt at conciliation before court proceedings
In many German states, a neighbor dispute must go through a so-called mandatory conciliation procedure before the matter is heard in court. This is intended to help relieve the burden on the courts. Compulsory dispute resolution has been introduced in many federal states, including Brandenburg with the Brandenburg Conciliation Act – BbgSchlG. In Berlin, this has not yet been required.
However, this conciliation procedure should not be confused with arbitration, in which the parties voluntarily submit to an arbitrator’s ruling or attempt on their own initiative to find a solution to the conflict under the guidance of a mediator. A court ruling can make it difficult for neighbors to continue living together. In contrast, an amicable settlement with a mediator can often establish lasting legal peace.
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