When a neighbour builds a wall or fence too high

Quick overview

With a high wall or fence, there are always two issues to address. The first is building law: some types of fencing today do not require permission, others do. The second is a private law one: even a structure that formally passes the Building Act may be unacceptable to a neighbour if it causes undue shadow or otherwise substantially restricts the neighbour’s normal use of the land. In practice, therefore, it is often not enough to determine whether the neighbour “had the paperwork”, but also how the building actually impacts on the neighbouring property.

When can a high wall be a problem under the Civil Code

The Civil Code protects the landowner against so-called neighbour immissions. The owner must refrain from anything that causes, among other things, smoke, dust, odour, noise, light or shadow to enter the neighbouring property, unless it is reasonable in the local circumstances and substantially restricts the normal use of the neighbouring property. Shadow is the most common point of contention with high walls and solid fences.

This does not mean that every shadow is automatically unlawful. The court always assesses the specific situation. A high wall between large gardens in the countryside will be judged differently from a fence in a dense urban development where less privacy and less sunlight are more common. The Act therefore works with the concept of local circumstances.

A typical example from practice: on the edge of a village there are two detached houses with large gardens. One neighbour builds a long solid wall at the boundary of the property which shades the greenhouse and fruit trees on the neighbour’s property for most of the day. It is in this situation that civil defence for unreasonable shade may already be appropriate, even if the structure does not physically encroach on the other person’s land.

Trees and buildings at the property boundary

The Civil Code also addresses other neighbourly situations that are often related to high walls. It allows you to demand that a neighbour refrain from planting trees close to the property boundary if the other owner has a reasonable reason for doing so. The law also gives indicative distances: for trees usually over 3 metres in height it is 3 metres from the boundary, for other trees it is 1.5 metres, unless local custom or other legislation specifies otherwise. Similarly, a neighbour may be required, on reasonable grounds, to refrain from erecting a structure in close proximity to a common property boundary.

In practice, this means that it may not just be the wall itself that is the problem, but also the overall layout of the neighbouring property. For example, if a neighbour erects a high opaque fence and at the same time plants fast-growing trees right next to the boundary, the interference with the neighbour’s enjoyment of the land may be even more significant.

When does a fence or wall require permission

According to the Building Act, a fence up to 2 metres high between plots of land that are in a built-up area or a developable area is a minor structure. Similarly, retaining walls up to 1 metre in height are also included. These small structures generally do not require permission from the building authority. However, if a fence or retaining wall does not fall under this category, it is usually a simple structure and already requires a permit.

It is therefore not just the height that is decisive. It is also relevant whether it is actually a fence between plots in a built-up area or developable area, or, for example, a fence in the open countryside, a higher fence, a specific retaining wall or other structure that no longer falls within the free regime.

In some cases , other regulations may also play a role, for example if the structure is in a conservation area, conservation area or adjacent to a public space or road. There, the specific circumstances always need to be assessed.

How to defend yourself when the building is still being planned

If a neighbour is just planning a building that requires permission and may directly affect your property rights, it is best to respond as soon as possible in the relevant proceedings. At that stage, you can raise issues such as the unreasonable impact of the building on sunlight, use of the garden, safety or other specific interference with your property rights. The sooner objections are opened, the better the chances that the problem will be resolved before the building is completed.

What to do if a neighbour has already built a building

If a wall or fence has already been built, the first thing to do is to find out under what regime the building was built. If it was a project that required permission and the neighbour built without it or in breach of it, a complaint can be made to the building authority. The latter can deal with the unauthorised building and, if necessary, the question of its removal or additional authorisation.

However, if the main problem is that the building is unreasonably obstructing the view, impairing the use of the garden or otherwise interfering with your rights, you may also need to take civil action under the Civil Code. Building compliance alone does not mean that everything is okay from a neighbourly point of view.

What about the fence between neighbours and who pays for it

A fence between plots is not automatically obligatory. However, in some situations it may be necessary if the unfenced land would actually annoy the neighbours or restrict the use of their property. Similarly, it is not automatically correct to assume that any new fence must always be paid for exactly half by both neighbours. It depends on where the fence stands, who owns it, who set it up and whether there is an agreement between the neighbours or some other legal basis for sharing the costs.

In practice, therefore, it pays to address these issues in advance. If your neighbour builds the fence himself, this does not automatically mean that he can demand half the cost from you without further delay.

Summary

A high wall or full fence is not automatically unlawful. The key is whether the building complies with the building regulations and whether it also does not unreasonably interfere with the neighbour’s rights. In particular, the Civil Code protects against unreasonable shade and other immiserations that substantially interfere with the normal use of the land. According to the Building Code, fencing up to 2 metres between plots in a built-up area or developable area is generally a minor structure without a permit, while other fences and retaining walls may already require a permit. Therefore, the most important thing is to first find out in which regime the structure is being or has been built, and then choose the right defence.