Built over the property line: can the overhang remain?

In practice, disputes between neighbors about property boundaries arise regularly. Such a dispute arises, for example, when it turns out that a neighbor has placed a shed, extension, or other structure partly on the other person's land. In that case, the structure has been built on land that belongs to the neighbor. This constitutes an infringement of his property rights. Ownership is the most comprehensive right that a person can have over an item.

The owner of the land will probably want the infringement to be removed. In other words: the structure must be removed, and preferably as soon as possible. The builder, on the other hand, will not want to move or demolish his shed, extension, or other structure. After all, that costs a lot of money and, moreover, space. The result? A neighbor law dispute.

The starting point for overbuilding is the demolition of the unlawful construction.

We refer to overbuilding when a structure is built entirely or partially on a neighbor's property. This usually happens accidentally. It can be caused, for example, by an incorrect assessment of the property boundary or incorrect cadastral data, but it can also be done deliberately. In principle, the owner of the land has the right to demand that the use of his property be discontinued. He can therefore enforce the relocation or removal of the structure.

Exception 1: prescription of ownership

However, ownership of the piece of land on which the building is constructed may also have been transferred to the builder on the other side. In that case, we are talking about acquisitive or extinctive prescription. See in that context the blog about the statute of limitations on property boundaries. In that case, the structure does not need to be moved or removed. The builder has acquired ownership of the piece of the overbuild, which means that the structure stands on his (acquired) land.

Exception 2: claiming easement for the overbuilding

But what if there is no acquisition of ownership by prescription? Is the builder then always obliged to move or remove the structure at the neighbor's request? The answer to that question is ‘no.’. Article 5:54(1) of the Dutch Civil Code offers possible relief in such a situation. That article states:

If a building or structure is built partly on, above, or below another person's property and the owner of the building or structure would be disproportionately disadvantaged by the removal of the protruding part compared to the owner of the property by maintaining it, then the owner of the building or structure may at any time demand that, in return for compensation, he be granted an easement to maintain the existing situation or, at the discretion of the owner of the property, that the necessary part of the property be transferred.

When can you leave an overbuild in place?

If you have built over the property line, under certain circumstances your neighbor may be required to easement legalizes the overbuilding. Another option offered by Article 5:54 of the Dutch Civil Code is transfer of the land. For that article to apply, two requirements must be met:

1. a structure must be built on, above, or below another property or have started to lean, and;
2. a claim for removal of the structure would abuse of authority deliver from the owner of the neighboring property.

The second requirement is assessed on the basis of a weighing of interests. The disadvantage to the owner of the plot of land if the protruding part is retained is weighed against the disadvantage to the person whose structure must be removed in whole or in part. The court's assessment of abuse is applied strictly. An appeal under Article 5:54 of the Dutch Civil Code is not granted lightly. The starting point is that property rights must be respected. The loss of property rights due to the establishment of an easement is the exception. 

Easement or transfer in return for compensation

Article 5:54 of the Dutch Civil Code therefore offers the possibility of making an unlawful situation lawful. There are two options for doing so:

1. a easement established to tolerate the overbuilding, or;
2. The land on which the building is constructed will be transferred to the buyer's ownership.

In both cases, the owner of the neighboring property must be compensated. Compensation must be paid in accordance with the general rules on compensation (Article 6:95 et seq. of the Civil Code).

Case law on legalizing buildings that extend beyond the property line

On October 16, 2024, the District Court of North Holland (ECLI:NL:RBNNE:2024:4062) a claim pursuant to Article 5:54(1) of the Dutch Civil Code. The neighbor was ordered to cooperate in establishing an easement for the overhang. This was offset by compensation of €500. In reaching its decision, the court considered, among other things, the following:

“In the present case, there is very little overhang. Based on the surveyor's measurements, the newly installed cladding protrudes approximately 2 centimeters beyond the reconstructed property line and the roof edge (gutter) approximately 7 centimeters.
The quotation submitted by [the defendant] shows that it would cost €16,751.00 to shorten the rear facade and lower the roof. Having to demolish and rebuild the extension and the associated costs would disadvantage [the defendant] disproportionately more than [the plaintiff] by maintaining the current situation.”

On January 31, 2024, the Limburg District Court ruled (ECLI:NL:RBLIM:2024:386) reached the same conclusion in a similar case. A ruling was issued to grant an easement with regard to the overhang in exchange for compensation to the other party. In that case, the compensation amounted to €533.22.

Owners sometimes have to accept overbuilding...

The key point in the application of Article 5:54 of the Dutch Civil Code is that an owner must accept an infringement of his property rights if:

• the infringer has a legitimate interest in the infringement,
• the owner does not suffer any damage,
• the owner is not restricted in his or her use of the property,
• and the owner is not inconvenienced by the infringement. 

…unless there is a lack of good faith.

However, invoking Article 5:54(1) and (2) of the Dutch Civil Code does not apply if there is a lack of good faith or if there is gross negligence. Article 5:54(3) states:

“The preceding paragraphs shall not apply if this results from an obligation based on law or legal act to tolerate the existing situation or if the owner of the building or structure can be accused of bad faith or gross negligence with regard to the construction or acquisition thereof.”

The burden of proof in this regard rests in principle with the party invoking the absence of good faith or gross negligence. That is therefore the neighbor on whose plot the building was constructed. In the ruling referred to below, that proof was provided. On April 30, 2025, the Gelderland District Court ruled (ECLI:NL:RBGEL:2025:3269) namely that there was gross negligence within the meaning of Article 5:54(3) of the Dutch Civil Code:

“According to case law, gross negligence is involved if the ‘overbuilder’ can be personally blamed for building on the neighboring property (Supreme Court, March 28, 2008, ECLI:NL:HR:2008:BC1242The point is that the ‘overbuilder’ can be seriously blamed for not knowing better; he could and should have known better. A circumstance to which weight is attached in the aforementioned case law for the seriousness of the blame to be attributed to the ‘overbuilder’ is that the ‘overbuilder’ was aware of the objections to the construction raised by the owner of the neighboring plot, so that extra vigilance could be expected of him. In that case, the ‘overbuilder’ has an (additional) duty to investigate. In the opinion of the court, the latter is what [plaintiff in conv] can be blamed for.”

For this reason, Article 5:54(1) of the Dutch Civil Code cannot be invoked. Despite the warnings and notifications from the neighbor, the builder continued the work without conducting further investigation. For this reason, it was ruled that there was gross negligence.

When should overgrowth be removed and when can it be left in place?

Lexys' attorneys specialize in real estate law and can advise you on when an overbuilding must be removed and under what circumstances it may remain. Please contact us. contact Join us to learn more about it. We can make a difference for you.