Neighbour disputes in Belgium: nuisance, trees and servitudes

Noise at night, a heat pump humming day and night, a hedge that blocks out all the light, cracks caused by building work next door or a neighbour who blocks access to your garden: neighbour disputes and nuisance weigh heavily on the enjoyment of your home. Since 1 September 2021, Book 3 “Property” of the Belgian Civil Code (Burgerlijk Wetboek / Code civil) has expressly governed relations between neighbours. This article explains the rules on neighbour nuisance (burenhinder / troubles de voisinage), plants and trees, overlooking and servitudes, and how best to handle a neighbour dispute in Belgium.

Excessive neighbour nuisance: the balance doctrine

Neighbouring owners each have the right to use and enjoy their property. In doing so, they must respect the balance between them: no one may impose on a neighbour a nuisance that exceeds the normal inconveniences of living side by side (Article 3.101 of the Civil Code). Fault is not required: even someone who acts entirely within the rules may be held liable if the nuisance is excessive and attributable to them.

Typical examples are noise (a heat pump, air conditioning or frequent parties), smells, vibrations, dust and the loss of light or sunshine. Neighbours must tolerate a certain degree of nuisance; only what exceeds the normal inconveniences gives rise to a right to have the balance restored. Whether a nuisance is excessive is assessed by the court in the light of all the circumstances, including:

• the timing, frequency and intensity of the nuisance;
• who was the first to occupy their property;
• the public purpose of the property from which the nuisance originates.

If the court finds the nuisance excessive, it restores the disturbed balance, for example by awarding financial compensation or ordering the neighbour to bear the cost of compensatory measures. Depending on the circumstances, it may also order the act disturbing the balance to stop, or measures to be taken on the property causing the nuisance to bring it back to a normal level, provided this does not itself create a new imbalance and does not rule out normal use and enjoyment of the property (Article 3.101(2) of the Civil Code). A permit does not rule out a nuisance claim: even an authorised activity can cause excessive nuisance.

Preventive action

You do not always have to wait until damage has occurred. Where there are serious and manifest risks relating to safety, health or pollution, such as an unstable structure or planned works that threaten to damage your home, the court may order preventive measures (Article 3.102 of the Civil Code).

Damage caused by building work next door

Works carried out by neighbours often lead to cracks, damp or subsidence. Before major works start, have a joint survey of the condition of your home drawn up (plaatsbeschrijving / état des lieux): without a point of comparison, it is difficult to prove that a crack is new. If damage occurs, report it immediately in writing to the project owner (bouwheer / maître de l’ouvrage) and ask that their contractor and insurer also be informed.

The project owner may be liable under the balance doctrine even if they committed no fault and had the works carried out by a contractor. In the event of serious damage, a court expert can be appointed, if necessary in summary proceedings (kort geding / référé).

Trees, hedges and overhanging branches

Trees that are 2 metres tall or more must stand at least 2 metres from the boundary, measured from the centre of the base of the tree; for other trees, shrubs and hedges, the distance is 0.5 metres (Article 3.133 of the Civil Code). This rule does not apply, among other cases, where there is an agreement to the contrary or the plant has been in place for more than 30 years.

If branches overhang your plot, you can ask your neighbour by registered letter to remove them within 60 days. If they fail to do so, you may remove them yourself or have them removed at their expense, but you then bear the risk of any damage to the plant (Article 3.134 of the Civil Code). The same regime applies to roots growing into your plot.

Windows, terraces and overlooking

Windows with transparent glazing, openings in walls, balconies and terraces must be at a straight-line distance of at least 1.90 metres from the boundary (Article 3.132 of the Civil Code). However, the neighbour cannot demand their removal if there is an agreement, if the works have been in place for at least 30 years, if the neighbouring property belonged to the public domain at the time of the works or was jointly owned property ancillary to the building of which the works form part, or if the works pose no risk whatsoever to privacy and good neighbourly relations.

Servitudes (easements)

A servitude (erfdienstbaarheid / servitude) is a burden on one property for the benefit of another property, such as a right of way or the right to run pipes under the neighbour’s land. It arises from a juridical act (usually an agreement), from the owner’s designation (bestemming door de eigenaar / destination du propriétaire) or from prescription.

Under the new property law, all visible servitudes can be acquired by acquisitive prescription, after 10 years in good faith and after 30 years in bad faith (Articles 3.118 and 3.27 of the Civil Code). If the owner of the burdened property has an objective interest, they may move the exercise of the servitude, provided they offer, at their own expense, a place on their property where the beneficiary can exercise their rights just as easily (Article 3.124 of the Civil Code). When buying a home, always check which servitudes are mentioned in the title deeds and which are visible on site.

Right of way for a landlocked plot

An owner whose plot is landlocked, with no access to the public road or without sufficient access that could be created without excessive cost or inconvenience, is entitled to a right of way (recht van uitweg / droit de passage) over the neighbours’ land (Article 3.135 of the Civil Code). The owner pays compensation in proportion to the damage caused, and the court determines the route of the right of way if the parties cannot agree. Among other cases, there is no right of way if the owner has an adjoining plot that is not landlocked and has sufficient access, or if the owner caused the landlocked situation through their own fault.

Handling a neighbour dispute: the practical steps

Gather evidence

Start by gathering evidence: a log with dates and times, photos and videos, noise measurements, statements from other neighbours and, where necessary, an official report by a bailiff (gerechtsdeurwaarder / huissier de justice). The more objective your evidence, the stronger your position in any discussion or proceedings.

Seek an amicable solution

Next, send a reasoned registered letter describing the nuisance and setting a reasonable deadline to remedy it; see also how to draft a formal notice (ingebrekestelling / mise en demeure) correctly. An amicable solution is always preferable: consider mediation or an attempt at conciliation before the justice of the peace (vrederechter / juge de paix). Night-time noise may also breach your municipality’s police regulations, in which case the police or the municipality can also take action.

Proceedings before the justice of the peace

If that fails, the matter can be brought before the court. Regardless of the amount at stake, the justice of the peace has jurisdiction over disputes concerning servitudes and the obligations that the law imposes on owners of adjoining land; neighbour nuisance disputes are also generally brought before this court. The court can order measures, impose a penalty payment (dwangsom / astreinte) and award compensation.

Frequently asked questions

My neighbour has a permit. Does that mean anything goes?

No. A permit governs the relationship with the authorities, not the relationship with the neighbours. Excessive nuisance still gives rise to compensation.

Is legal action over noise nuisance worthwhile?

Yes, if you have objective evidence. Without evidence, proceedings are hard to win; that is why every case starts with thorough evidence gathering.

How far from the boundary must a tree be?

A tree of 2 metres or more must in principle be at least 2 metres from the boundary; other trees, shrubs and hedges at least 0.5 metres. An agreement to the contrary or a plant that has been in place for more than 30 years is an exception.

Can I cut my neighbour’s overhanging branches myself?

Not straight away. You first ask your neighbour by registered letter to remove them. Only if they fail to do so within 60 days may you remove them yourself, or have them removed, at their expense.

Which court deals with a neighbour dispute?

Usually the justice of the peace, before whom you can also request an attempt at conciliation before starting proceedings. Regardless of the amount at stake, this court has jurisdiction over servitudes and the obligations between owners of adjoining land.

Novex Advocaten can help

We assist neighbours in Brussels and the surrounding area in disputes over nuisance, plants and trees, overlooking, servitudes and building damage, from the first letter and mediation through to proceedings before the justice of the peace. See also our articles on disputes with a contractor and on disputes in co-ownership.

Call 0484 99 22 72 or email asfour@novexadvocaten.be.