When a property owner exceeds their rights in the use of their property (Art. 684 et seq. CC), a neighbor who is affected or threatened by damage can assert their rights, seek recognition of their rights, or request compensation for their damage. This protection covers both positive and negative nuisances originating from the neighboring property.
To take legal action, several cumulative conditions must be met:
Standing to Sue: The right to act belongs to the neighbor, i.e., the owner of the property or someone who has effective control over the property through a limited real right.
Defendant: The action must be directed against a property belonging to either a private individual or a public entity.
Proof of Excess: The plaintiff must prove that the neighbor has exceeded their rights in using the property, that their rights have been affected, and that there is a causal relationship between the excess and the harm. “Excess” refers to human behavior related to the use and/or exploitation of the property that violates neighborhood rights. “Harm” is understood broadly as damage, meaning it suffices if movable things or people on the property are affected.
Art. 679 CC provides four civil actions in response to nuisance: the action for cessation of nuisance (i), the action for prevention of nuisance (ii), the action for declaration of rights (iii), and compensation for damage (iv).
Action for Cessation: This is a defensive action aimed at eliminating nuisances or harmful situations caused by one property affecting another. Its sole purpose is to remove the cause of the damage, i.e., to end the illegal exploitation of the property causing the harm. There is no restoration of the damaged property itself. The goal is to modify the use of the property so that no excessive property rights exist (ATF 107 II 134 cons. 3a, JdT 1982 I 462). For this action, the nuisance must be current, meaning the behavior causing the nuisance must exist at the time the action is initiated. It is only possible to request that the excessive and disturbing behavior be prohibited. Expulsion of tenants, for example, must be obtained indirectly through a court decision (TF 5C.16/2007 cons. 3.1.).
Action for Prevention: Although not explicitly provided for in the Civil Code, this action is recognized by case law and doctrine. It is a defensive action to prevent a nuisance from occurring. A neighbor threatened by potential damage from excessive property rights can resort to this preventive action. To initiate this action, the risk of an excessive nuisance must be serious, i.e., the likelihood of the harm must be high. The judge is likely to order measures to limit foreseeable nuisances within an acceptable context.
Action for Declaration of Rights (Art. 88 CPC): This aims to declare that a neighbor is exceeding their rights when the conditions for the other actions are not met. The plaintiff seeks judicial acknowledgment of the excessive nature of the nuisance and the illegality of the neighbor’s excessive rights.
Action for Compensation for Damage: This action seeks monetary or in-kind compensation for damages caused to the plaintiff by excessive nuisances as per Art. 684 et seq. CC. The plaintiff must prove the damage and its causal link with the nuisance, though fault of the defendant is not necessary. However, the existence of lawful property use must be considered: if the excessive nuisance is considered lawful because it is temporary and unavoidable, the neighbor can only claim damages but cannot take action for the nuisance.
If you need further legal information on this subject, do not hesitate to contact the Valentin Legal Consultation. We would be pleased to assist you at our office, either for personal advice or for online services. We are also reachable by phone at 021 351 30 00 and by email at info@cdjv.ch.
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