The issue of neighborhood disagreements, which according to the law fall under the so-called immissions, is relatively common and is the subject of many lawsuits. Especially in dense development of family houses, where the boundaries between lands are common, it is likely that you will get into a situation where your neighbor, due to his behavior (or, conversely, by the neglect of proper management of his land) makes it uncomfortable to use your land. However, immissions can also occur in the case of housing units. We will briefly present to you in the following paragraphs what the immissions are, what types of immissions are known by the Czech legislation and how to defend against them.
Legal regulation of immissions and their types
The provision 1013 section 1 of Act no. No. 89/2012 Coll., the Civil Code includes under immissions everything that causes waste, water, smoke, dust, gas, odor, light, shadow, noise, shocks and other similar effects to enter the land of another owner. These are often, for example, flying needles from a tree in a neighboring garden, shading by a tree, draining rainwater from the roof or bothering with frequent noise or smoke. In the same way, the running of animals from the neighboring land counts as an immission. Even the case of visual nuisance can be an immission. As such, immissions limit the property right of the owner of the land, while the neighbor on whose land the immissions arise should refrain from their negative effect in accordance with the above-mentioned provision.
Under the Civil Code, immissions are distinguished into direct and indirect, and this distinction is important for possible defense against them. Direct immissions are usually those which the neighbor brings to neighboring land directly, usually intentionally. These are, for example, cases where a neighbor knowingly drains rainwater from a gutter to his neighbors garden. Indirect immissions, on the other hand, are the result of actions by a neighbor and which have immediate effects reflected on the adjacent land. This can happen outside of his will and contribution. Direct immissions should be prohibited by law without further ado, while indirect immissions may be prohibited by the court in the case of judicial defense, if necessary only to a certain extent.
The Civil Code also presupposes that the defense against immissions can be applied only if the intruding immissions are disproportionate to local conditions and at the same time substantially restrict the usual use of land. It should be recalled that everyone is obliged to tolerate to some extent the immission of ordinary use of neighboring land. However, the law describes the limit of the tolerance as something that is already disproportionate to local conditions. This means that it is unusual for the area and it would therefore not be reasonable to require other residents to suffer such an immission.
Related neighborhood rights
In connection with the immissions, the defense provided under the related neighborhood rights is also often used. Often, for example, in conjunction with the defense against the immission consisting in shielding of the tree is also used together with the requirement to remove the tree. It is thus possible to request on the basis of the provision 1017 of the Civil Code. This provision establishes the obligation of the owner of the tree to remove it if he left it grow in inappropriate way. At the same time, the similiar can be demanded if the tree grown on the adjacent land is too tall and stands close to the common border. This provision therefore also states an acceptable distance from the land border, which for trees exceeding 3 meters in height is 3 meters from the border and for other trees 1.5 meters.
It should be borne in mind that further restrictions for the felling of certain trees are also set out in section 3 of the Decree No. 189/2013 Coll., on the protection of tree species and the permitting of their felling. In the case of successful actions to refrain from the immissions caused by a tree which is to be felled as a result, the court must seek the permission of the competent authority if the tree is protected by this decree. Therefore, if you are trying to cut down a tree that is protected on a neighboring land, this can lead to significant complications in the event of litigation.
Common disagreements also include overgrown plants on adjacent land that extend to your land. In such a case, you may consider self-defense under provision 1016 section 3 of the Civil Code, which states that parts of plants that extend from neighboring land can be removed by a neighbor in a gentle manner without further restriction. It is also possible, pursuant by the provision 1016 section 2, to remove tree roots or branches that extend to your own land at the appropriate time of year, unless the owner has done so on request.
How is it possible to defend against immissions
Finally, we would like to summarize how it is possible to defend yourself if you are limited by certain immissions arising on your neighbor’s land. As always, it is first and foremost appropriate to consider the agreement amicably. You can send a notification to your neighbor by post, describing the situation and inviting him to voluntarily rectify the situation. In the event that a neighbor does not respond to this call and does not eliminate the effects of immissions, it is appropriate to consider judicial defense. It is possible to demand refrain against immissions in court by an action pursuant on the basis of the provision 1042 of the Civil Code. By means of this action, the owner can seek protection against anyone who unjustly infringes his property right.
However, in the event of litigation, it should be borne in mind that the assessment of whether an immission is proportionate or disproportionate to local circumstances is entirely at the discretion of the judge, who does so on the basis of a local investigation and other evidence. The case law on neighborhood disputes involving immission harassment is relatively extensive and in some cases the courts decide very surprisingly. It is therefore appropriate to have good legal representation by a lawyer who will mitigate potential risks. It is also necessary to describe all the decisive facts in the filed action, especially what the immissions consist of, how they are disproportionate to local conditions and how they restrict your ownership and use of the land. It is also important for the court to prove that you have already alerted your neighbor to the problem in the past, for example through a summons sent by post.
If you are in this unfavorable situation and therefore considering legal assistance in preparing the above-mentioned submissions, you can contact our law firm, where we will fully address your issue and provide you with complete legal advice tailored to your requirements.
