The work done on the neighboring property is causing me harm: what can I do?
???? It was a small garden; that smelled good Metropolitan,
Please, please, Mr. developer; please, please, don’t cut my flowers ????
The billboard installed on the public road tells you that a new construction is going to be built on the land next to your property. This new building will necessarily cause you important prejudices: loss of sunlight, loss of intimacy, creation of views, depreciation of the market value of your property… What are your means of action against this construction?
I – Appeal against the building permit (or the preliminary declaration) authorizing the construction
First of all, it is possible to contest the planning permission granted to the neighbor.
Only the persons having an interest to act can criticize the authorization: it is the case when the authorized project is likely to “directly affect the conditions of occupation, use or enjoyment of the property that these persons occupy”.
The building permit or the prior declaration must then be criticized with regard to the town planning rules, most often contained in the local town planning scheme of the municipality. The rules of private law (easements, private prejudices, etc.) are not taken into account at this stage.
The critique of the town planning authorization can take two forms.
An informal appeal is a letter addressed to the mayor requesting the withdrawal of the authorization, while a contentious appeal consists in directly bringing the matter before the Administrative Court
To be admissible, these appeals must be filed within two months from the first day of posting of the authorization on the land where the work is to be carried out and must be notified to the beneficiary of the building permit or the prior declaration.
The objective is to obtain the cancellation of the building permit or the prior declaration. On the other hand, the judge of the Administrative Court does not have jurisdiction to compensate you for the damage you have suffered as a result of the construction, as the rights of third parties fall within the jurisdiction of the Court (judicial).
II – Action for compensation based on abnormal neighborhood disturbances
The theory of abnormal neighborhood disturbances is a praetorian creation based on the principle that “no one shall cause an abnormal neighborhood disturbance to another person”. In application of this theory, the right of an owner to enjoy his property in the most absolute manner is limited by his obligation not to cause damage to others that exceeds the normal inconveniences of the neighborhood.
Concretely, the courts consider that the prejudices caused by the construction (loss of sunlight, depreciation of the market value, loss of intimacy….) can be compensated as soon as they cause an abnormal disturbance, even if the planning permission is legal.
However, it must be shown that the harm suffered exceeds the “normal, usual and ordinary inconveniences” inherent in the neighborhood. This excessive character is assessed according to the circumstances of time and place. Thus, a disturbance may be abnormal in a space preserved from urbanization and not be compensated when it takes place in a dense area.
It is advisable to carry out an analysis of the appropriateness of an action based on this theory before bringing a case before the Court.
Our attorneys are available to answer all your questions and to advise you. Our meetings can be held in person or by videoconference. You can make an appointment directly online at www.agn-avocats.com.
AGN AVOCATS – Urban Planning
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