1. Prohibition of abuse of rights
The prohibition of abuse of rights is a generally recognised principle of law that has been upheld on many occasions by the Supreme Court.
It therefore comes as no surprise that when the new Civil Code was drafted, the prohibition on exercising one’s rights in a manner manifestly beyond the limits of the normal exercise of that right by a prudent and reasonable person placed in the same circumstances was enshrined in law. (Art. 1.10 Civil Code)
2. Judgment of the Constitutional Court
In the subsequent drafting of the Civil Code, the legislator took into account the possibility of abuse of rights. According to the Constitutional Court, in Article 3.62 of the Civil Code, which pertains to the crossing of plot boundaries, the legislator exceeded the limits of the scope of abuse of rights.
3. What is this case about? Building over a plot boundary
Art. 3.62 of the Civil Code governs situations where a structure is built fully or partly on the neighbour’s land.
Art. 3.62 § 2 of the Civil Code focuses in particular on the question of what possible action the neighbour can take against the actions of a builder who crosses the plot boundary.
Art. 3.62 § 2, first paragraph of the Civil Code stipulates that the neighbour can demand that the element which intrudes into their plot be removed.
Art. 3.62 § 2, second and third paragraph of the Civil Code specify what the solutions to the dispute are if the neighbour actually demands demolition.
Art. 3.62 § 2, second paragraph of the Civil Code states that if the builder is acting in good faith and he would be disproportionately disadvantaged by any demolition, the neighbour cannot demand that the structure be removed. The neighbour can then either grant a right of superficies for as long as the structure exists, or transfer the necessary part of the plot, in both cases against compensation, on the grounds of unjust enrichment.
Art. 3.62 § 2, third paragraph of the Civil Code pertains to situations when a builder crosses a plot boundary in bad faith, and states (freely translated):
If the boundary is crossed in bad faith, the neighbour may demand the removal of the inherent element that crosses the boundary, unless it neither does not take up an extensive area, nor causes potential damage on the part of the latter. If the neighbour does not demand removal, the second paragraph applies.
4. Specific situation
The Justice of the Peace of the canton of Hamme was faced with a dispute falling under the application of this article 3.62 § 2, third paragraph of the Civil Code.
A builder had fitted insulation, a wall, foundations and utility lines, in addition to the partition wall, manifestly on his neighbour’s plot.
The neighbour did not appreciate this and demanded that the works be demolished before the Justice of the Peace.
The Justice of the Peace ruled that the builder built the works on his neighbour’s property in bad faith (because he was aware that he was crossing the plot boundary), that the works did not take up an extensive area (about 25 cm) and that the neighbour did not prove exactly what his damage was.
Consequently, the neighbour could only be entitled to compensation, based on the principle of unjust enrichment, for a (forced) right of superficies or transfer of ownership.
We can imagine that this conflicted with the Justice of the Peace’s sense of justice.
What is the point of a plot boundary if someone can deliberately breach it and then force the neighbour who disputes it to obligatorily sell?
The Justice of the Peace therefore put the preliminary question to the Constitutional Court whether the provision of Article 3.62 § 2, third paragraph of the Civil Code is contrary to property rights as defined in Article 16 of the Constitution:
No-one may be relieved of their property except for the public benefit, in the cases and manner stipulated by law and against fair compensation in advance.
The Constitution provides three special conditions that do not have to be met in application of Article 3.62 § 2, third paragraph of the Civil Code:
- for the public benefit
- in the manner stipulated by law
- in advance
5. Assessment of the Constitutional Court
The Belgian government defended before the Constitutional Court the provision of art. 3.62 § 2, third paragraph of the Civil Code with explicit reference to the prohibition of abuse of rights.
If the structure does not take up an extensive area and does not cause potential damage to the neighbour, it is therefore not reasonable that the neighbour can demand that it be demolished?
It seems as though the legislature overlooks the fact that its position validates a party taking the law into their own hands, in bad faith.
Consequently, in its ruling of 25.04.2024, the Constitutional Court rightly ruled that Article 3.62 § 2, third paragraph of the Civil Code is contrary to the Constitution.
The Constitutional Court emphasises in its ruling that even when a builder is informed of the fact that he is crossing the plot boundary before the start of the works, or during the course of the works, he could, according to Art. 3.62 § 2, third paragraph of the Civil Code, oblige his neighbour to accept the acts that he has unlawfully carried out.
The Constitutional Court held that if the demand for demolition is formulated within a reasonable time, the removal of the structure does not cause disproportionate disadvantage to the builder acting in bad faith, compared to the advantage for the neighbour when the structure is removed.
This ruling can be fully supported.
What is more, by extension, it can and should be inferred from this ruling that a party cannot invoke the prohibition of abuse of rights to justify their own deliberately illegal acts. The prohibition of abuse of right is not a cloak for taking the law into one’s own hands.
