Nuisance or Hindrance

Nuisance
If your problem is not dealt with in the law, you will have to fall back on the general standards within neighbor law in order to answer your question. These can be found in Article 5:37 of the Dutch Civil Code('Nuisance')and - although not included in Title 5.4 of the Dutch Civil Code - in art. 3:13 BW ('Abuseof right or authority'). Pursuant to Article 5:37 of the Dutch Civil Code, an owner (or tenant) of a yard may not cause unlawful nuisance to owners (or tenants) of other heirs by spreading noise, vibrations, stench, smoke or gases, by withholding light or air or by depriving them of a building support. The essential thing here is in the word 'unlawful'.

In principle, an owner (or tenant) can do whatever he wants with or in his yard. After all, it belongs to him in ownership (of course the tenant must observe his obligations under the lease to the landlord and vice versa). Third parties - such as the neighbors - must therefore accept a certain nuisance, which one always experiences from another. Everyone has their music too loud sometimes. Everyone causes vibrations, for example during renovation work. The neighbors' trees always take some sunlight and lose their leaves in the fall, where you have to accept that they also fall partly into your gutter and on your lawn. The waste bins of the neighbors smell regularly in the summer. And their dog sometimes barks annoyingly, especially at night. You must tolerate such 'normal' nuisance. You cannot do anything about this in court. Only when the nuisance takes on such serious forms that it is unacceptable according to general social standards, can there be unlawful nuisance and you can possibly take action against it.

The problem, however, is that it cannot be said in advance when general social norms will be exceeded. This will, if the parties themselves do not come to an agreement, ultimately have to be decided by the court. But his judgment is also not certain in advance, partly because he must take into account all the relevant circumstances of the case in his decision. With such an uncertain outcome, not everyone will be willing to go to court. On the other hand, the intervention of the judge usually has some positive effect. The judge proposes one or more alternative solutions during the trial. Often parties want to listen to that now, especially if it is still unclear for both of them what the verdict will ultimately be.

Evidence, extensive dossier construction
A second problem for the person who engages the judge is that he has to prove that there is a nuisance and that it goes beyond the normal standards and is therefore unlawful. Sometimes this is not so difficult. For example, the judge can come and see for himself how much shade the neighbor's tree causes or how much noise the neighbors' refrigerator makes. But often the nuisance occurs only occasionally. A neighbor who regularly plays his piano loudly at night will of course not admit this to the judge and say that he rarely, if ever, does. You will then have to prove that he is not telling the truth. The same applies when the neighbor's dog is constantly barking. The judge can come by, but he does not sit for hours - and certainly not at night - waiting to check how often and how loudly the dog barks. The police do not do this either. In such circumstances, you have no choice but to make an extensive 'paper' dossier. In it you can include the (registered) letters to the neighbor and / or his landlord. You can also ask if the police will come by and make a note of the nuisance. If the police have visited a number of times when the dog barked, that will certainly play a role in the judge's judgment. There are also complaint lines where you can report by telephone when you are again inconvenienced by your neighbor. In recent years, it has also become increasingly easy to take photos, make sound recordings or video recordings, although these do not offer conclusive evidence. Of course it is wise, if possible, to complain together with the other residents in your immediate vicinity, who are also bothered by your neighbor. When two or three owners (and/or tenants) declare that they are seriously bothered by a neighbor's behavior, it will most certainly be adopted by the court more quickly. 

In this way, it is usually possible to collect sufficient evidence with which you can convince the judge that there is in any case a (serious) nuisance. On the basis of this, the court is able to form an opinion on the question whether the nuisance is also unlawful. So even if you have to invoke 'unlawful nuisance' to tackle the nuisance, neighboring law offers the possibility to do so. The court can determine whether there is an unlawful act, and if so, to what extent a claim, for example compensation and / or the removal of the nuisance, can be granted.

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