Roof terrace near property boundary: this is what civil and administrative law is like!

Roof terrace near property boundary: this is what civil and administrative law is like!

In urban areas, it is common for home or apartment owners to want to create additional outdoor space. Often the roof of the house is then the only real option for this. It often happens in our practice that one of the parties is confronted with a neighbor who disagrees with a roof terrace or vice versa. The accusation then often made is that the roof terrace is too close to the property line and is overlooking the neighbor's property. In this blog real estate law attorney Robert van Ewijk and lawyer administrative law René Rensing What is and is not allowed.

Prohibition against looking into neighbor's yard

The law (Article 5:50 BW) states that it is prohibited to have windows, wall openings, balconies or other works within two meters of the property boundary from which direct views of the neighbor's yard are possible. This means that if a roof terrace is placed too close to the property boundary and you can see into the neighbor's garden from that roof terrace, that this roof terrace is then unlawful is.

Roof terrace near property boundary often permitted under administrative law

In contrast, the installation of such a roof terrace is often permitted under administrative law. It is true that in most cases an environmental permit is required, but this often involves a so-called tied decision. This means that if the roof terrace in question meets the relevant conditions, the municipality is obliged to issue the requested environmental permit. Conditions that are often set are, for example, that the fencing has a certain maximum height. Or that the roof terrace is not visible from the public road.

Civil remedy: removal of view

One solution to remove the prohibited view of the neighbor's yard may be to install an opaque screen. This removes the view and removes the illegality of that view. After all, that view no longer exists. At most there could then still be a question of the unlawful removal of light from the neighbor's garden, but whether this is the case in the specific case depends on the location of the terrace in relation to the garden.

Administrative law bump in roof terrace near property line and view screen

Then, however, we run into another administrative law problem. As indicated above, the municipality often sets requirements for the maximum height of fencing. An opaque screen qualifies as such fencing. If that were to be communicated with the permit application, the municipality could refuse the environmental permit. Therefore, waiting for the environmental permit to become irrevocable and then installing an opaque and perhaps even movable screen is not the solution. This is because the owner may then be violating the requirements attached to the environmental permit. The neighbor who wants the roof terrace to disappear can then ask the municipality to take enforcement action. If the municipality agrees with the neighbor, it can then force the roof terrace owner to remove the screen. As a result, there is suddenly a view again, and thus civil illegality.

Could the neighbor's request for enforcement be unlawful?

Civil law is also relevant to the enforcement request for another reason. Namely, the question is whether the neighbor had a reasonable interest in his request for enforcement. Although the municipality has a duty to enforce if requested to do so, under circumstances it could be the case that the neighbor's request to do so is made solely to harm the roof terrace owner's interests. In that case, the enforcement request could be found to be an abuse of rights. However, the threshold for reaching that conclusion is high (compare this statement of the Administrative Law Division of the Council of State). From abuse of right is therefore not a simple matter.

Concurrence of administrative law with civil law

In real estate law, it often happens that civil issues coincide with administrative law issues. Not only in the example described above about the installation of a roof terrace, but also in the realization of a extension or operating a catering facility in a VvE, which often requires permission from both the municipality and the VvE. Lexys Advocaten is a specialist in the field of civil real estate law. For administrative law cases we work closely together with René Rensing of Rensing Advocatuur, who has a highly specialized administrative law practice. Do you have any questions? If so, please contact at Lexys Lawyers. We will ensure that the right attorney is assigned to your case.