What if your neighbour suddenly starts construction and—worse—places part of a wall, foundation, or insulation on your land? The Belgian legislator believes that even in cases of bad faith, the judge cannot always impose mandatory demolition.
The Constitutional Court adjusted that interpretation in a ruling on April 25, 2024. This article discusses that case law and clarifies your options when part of your property is occupied.
Property is a fundamental right, as confirmed by the Constitution and international treaties. The basic principle is simple: the property boundary must be respected. However, property rights have limits. Not only are there urban planning regulations, but there is also a general corrective principle: abuse of rights. This means that everyone must exercise their rights as a “reasonable person” would.
Thus, even if you have the right to build a wall on your land, it may be contrary to the prohibition of abuse of rights to erect a 20-meter-high wall that completely blocks your neighbours’ view. No reasonable person would exercise their property rights in such a way.
When there are several solutions to a legal problem, you must choose the least harmful one. The prohibition of abuse of rights prevents you from deliberately selecting the option that causes the greatest harm to the opposing party.
Parcel boundray overrun in good faith
The prohibition of abuse of rights plays a major role in the subject of this article: what happens when a neighbour infringes your property rights by carrying out works on your land? However, your neighbour may have been misinformed and thought the boundary lay elsewhere; the plans may contain an error; or there may have been a measurement mistake. In such cases, the neighbour did not know the boundary was being crossed and acted in good faith.
If the neighbour acted in good faith, the justice of the peace will seek a proportional solution. They will examine how serious the encroachment is, what damage demolition would cause, and whether the encroachment could have been avoided. If the boundary crossing is very limited and the neighbour acted in good faith, the prohibition of abuse of rights prevents forced demolition, as it would cause disproportionate damage. Naturally, this does not exclude other forms of redress (such as compensation).
Parcel boundary overrun in bad faith
But what if your neighbour did know that the boundary was being crossed, for example because you warned them? The Civil Code provides as follows (Article 3.62):
If the boundary crossing is in bad faith, the neighbour may demand the removal of the encroaching inherent component, unless there is neither a significant encroachment nor potential damage for the latter. If removal is not demanded, the second paragraph applies.
In other words, in cases of bad faith boundary overrun, removal may be demanded unless there is neither significant encroachment nor potential damage. In that case, the neighbour’s construction remains in place, at least according to the legislator.
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However, the Constitutional Court intervened. It ruled that this regime constitutes an unacceptable infringement of property rights. More specifically, according to the Constitutional Court, in the event of a demolition request within a reasonable period, removal can be imposed in any case, no matter how small or minor the disadvantage for the neighbour may be.
Practical Steps
If you are confronted with boundary encroachment, there are steps you can immediately take. Notify your neighbour in writing of the encroachment and collect the necessary evidence (photos, plans, measurements). If the situation persists, the justice of the peace can impose interim measures or order removal.
Conclusion
Despite the Constitutional Court’s ruling, these matters remain a balancing act where skilled legal argumentation remains crucial.
Would you like to know whether, in your case, demolition or removal is defensible, or how best to handle such a situation to ensure you do not lose the right to removal? Vanbelle Law Boutique is ready to defend your interests and analyse your case.
