A VvE was recently sued because it had installed balconies over a neighbour's plot. The neighbour claimed in summary proceedings that the balconies should be removed because this would infringe his property right. The case, which ran before the Amsterdam District Court, involved the following.

The facts

VvE members own the flats in a building built up to the plot boundary of the plaintiff's (the neighbour's) plot. The property has no garden and (until recently) had no balconies. On the neighbour's plot is a shed with a pitched roof with daylights.

An environmental permit was granted by the municipality of Amsterdam for the addition of two balconies to the rear facade of the VvE's property. The permit is in the name of the architect. After the permit was granted, the VvE requested the neighbour to build scaffolding on his plot for necessary construction work at the rear of the property. The neighbour granted such permission.

By e-mail dated 21 May 2023, the neighbour's lawyer wrote to the CoE that permission was not granted for the erection of two balconies at the rear façade of the property, the construction of which the CoE had now started.

By e-mail dated 23 May 2023, the VvE's lawyer responded as follows:

"In order to be able to advise clients, it will have to be made clear what legally respectable interest your client has in opposing the placement of the balconies as licensed by invoking neighbourhood law. Mere reliance on the provisions of Section 5:50(1) of the Civil Code is insufficient for this purpose. Clients inform me that the work will not be continued at least until 12 June 2023. This gives us space to enter into the (amicable) consultation/discussion."

By e-mail dated 22 June 2023, the neighbour's lawyer informed the VvE's lawyer that his client had just informed him by telephone that the VvE was fixing the balconies. The CoE was summoned to stop the work immediately, failing which summary proceedings would follow.

By e-mail of the same date, the VvE's lawyer informed it that the summons would not be complied with. The neighbour's lawyer replied that this was a case of self-interest. The VvE's lawyer responded as follows:

"The legally relevant question is whether the infringement qualifies as unlawful in view of your client's interest in the refusal. After all, the interest does not lie in the infringement of your client's property 'per se'. After all, the refusal is materially motivated by your client's desire to be able to build elsewhere in due course without any objections from among others clients to that proposed construction. Added to this, nothing materially changes either. With or without balconies, the view from the roof of the subject plot is the same. The refusal constitutes an abuse of right."

Neighbour's claim

Summary proceedings were then instituted by the neighbour, in which proceedings it claimed removal of the balconies on pain of a penalty payment, with an order that the VvE pay the costs.

The neighbour based his claim for removal on the fact that the VvE was acting arbitrarily by attaching two balconies to the rear façade without having an environmental permit and without his consent.

Judgement of the court

According to the court, this argument of the neighbour was not valid.

To the extent already relevant, it had been explained on behalf of the VvE that it was not unusual for an environmental permit to be put in the architect's name. It was clear from the planning permission that it had been applied for and obtained on behalf of the VvE's premises. This, according to the court, made it sufficiently plausible for the time being that the VvE had an environmental permit.

According to the neighbour, the VvE infringed its property rights because the balconies were located above his property, The VvE's conduct amounted to self-direction and should not be rewarded: the VvE knew that it was not prepared to grant permission, but installed the balconies anyway. For this reason alone, the balconies should be removed. In ending this situation, he has an urgent interest.

According to the court, this too did not hold true:

"It does not follow from the law (Book 5 of the Civil Code) that (in all cases) prior consent is required for the installation of a balcony above someone else's ground. While Article 5:21 paragraph 1 of the DCC stipulates that the power of the owner of the land to use it includes the power to use the space above the surface, paragraph 2 stipulates that the use by others of that space is permitted if it is so high that the owner has no interest in opposing such use. Furthermore, Article 5:54 paragraph 1 of the Civil Code provides that, when a work has been built above another person's yard (as here, the balconies) and the owner of the work (the balconies) is disproportionately disadvantaged by the removal of the protruding part than the owner of the yard by maintaining it, the owner of the work (the balconies) may at any time claim that an easement to maintain the existing condition be granted to him against compensation. In short, the owner's right in Section 5:21(1) of the Civil Code is not absolute."

 Therefore, according to the court, the question was whether the VvE could reasonably have decided to attach the balconies when it knew that the neighbour objected. The court answered that question in the affirmative. According to the court, for the time being it was plausible that the court on the merits would rule that the neighbour had no, or at least insufficient, interest in removing the balconies. These are indeed located above his plot, but it has neither been stated nor shown that the current use of this plot will be hindered by the presence of the balconies or that future plans he has with this plot will become impossible as a result. Therefore, there is no question of the VvE acting on its own. The law does not state that the VvE needs (prior) permission from the owner of the land before it may install balconies. The VvE was entitled to weigh up that the neighbour had no, or at least insufficient, interest in opposing this. Nor did the neighbour argue at all that, as the owner of the plot, he had any interest in removing the balconies. Apparently, he was concerned with something quite different. The neighbour intended to build out in height on an adjoining plot (also belonging to him), but that did not apply to this plot.

The neighbour's requested removal of the balconies was therefore refused.

Do you have any questions or would you like advice on VvE matters or neighbour law issues? If so, please contact one of our lawyers without obligation. We will be happy to assist you!