Immissions and a neighbor - an entrepreneur - what should you know?


Property ownership is not unlimited. Every property owner, both an entrepreneur and a natural person, is obliged to use it in a manner consistent with its intended use and the principles of social coexistence. If the owner uses his property in a way that violates these rules and interferes with the free use of neighboring properties, he exposes himself to claims caused by the so-called immissions.

What are immissions?

Although no provision of the Civil Code contains an unambiguous definition of immission, it is assumed that they are all actions of the property owner - regardless of their nature - that are felt on neighboring properties. Neighboring real estates should be understood not only as real estates directly adjacent to the real estates from which the immissions originate, but also other real estates located within the harmful influence. Immissions may apply to real estate of various types, both land and buildings and flats.

Articles 143 and 144 of the Civil Code
Art. 143. “Within the limits defined by the socio-economic use of land, land ownership extends to the space above and below its surface. This provision is without prejudice to the provisions governing the rights to water ”.
Art. 144. "The owner of real estate should, when exercising his right, refrain from actions that would interfere with the use of neighboring real estate above the average measure, resulting from the socio-economic destination of the real estate and local relations".

When assessing whether the activities will constitute immissions, the purpose of the property and the so-called local relations. Not every activity of the entrepreneur that goes beyond the boundaries of his real estate will be considered as harmful immissions. It is obvious that the purpose of the real estate results from the local spatial development plans, decisions on development conditions and other legal acts (e.g. acts specifying technical requirements to be met by specific devices or installations). Local relations must be assessed comprehensively, taking into account a number of factors, such as the time of immission, place, location of other properties, intensity of immission and the time in which they occur (see the judgment of the Supreme Court of 3 July 1969 in the case file ref. II CR 208/69).

Direct and indirect immissions

Immissions can be of various types. The basic division of the methods of interaction allows to distinguish the immission:

  • material, strictly physical in nature (e.g. smells, sounds, dust, shocks);

  • intangible, which are of a psychological nature (e.g. the sense of threat caused by the storage of hazardous materials on the property);

  • indirect ones, which are not intended and are a by-product of normal use of the property (e.g. sound of grass being mowed on adjacent lawns);

  • direct, which are intentional and intentional (e.g. discharge of water or sewage to an adjacent property);

  • positive, action-based (e.g. noise or smoke emission);

  • negative, consisting in omission (e.g. preventing access to daylight).

If the entrepreneur in the course of his business uses the real estate in a way that allows for the emergence of immission and has a negative impact on the neighboring real estate, he must take into account the claims of the neighbors. It is worth remembering that not only the entrepreneur who owns the real estate, but also uses the real estate on the basis of another legal title (e.g. rent, lease, perpetual usufruct, etc.) may be exposed to the allegation of immission.

The neighbor has the right to a negative claim

Persons affected by the immission problem may demand that the property owner (or, as indicated above, another person who owns the property and is responsible for the occurrence of harmful influences) cease activities that violate their rights. The claim of the neighbors in this case takes the form of the so-called a negative claim, based on the provision of Art. 222 § 2 of the Civil Code. The aggrieved neighbors may demand from the entrepreneur producing immissions:

  1. restoring the legal condition (i.e. corresponding to the conditions described in the development conditions);

  2. cessation of further violations.

Art. 222 § 2 of the Civil Code
"Against a person who infringes ownership in a way other than by depriving the owner of de facto control of the thing, the owner has a claim to restore lawfulness and to cease the infringement."

A negative claim is a pecuniary claim (see the decision of the Supreme Court of December 19, 2002, issued in the case No. V CZ 162/02). This distinction will be of importance, inter alia, from the point of view of the amount of the court fee for a lawsuit in a case for abandonment of immission.

In order for a negative claim to be considered justified by the court, the immissions must be objective in nature. The subjective feelings of the neighbors about the harmfulness of the actions taken by the entrepreneur are irrelevant for the assessment of the legitimacy of the action. At the same time, the immissions must go beyond the adopted measure, in accordance with the assessment made on the basis of the above-mentioned provision of Art. 144 of the Civil Code.

If the claim of the aggrieved neighbor is found to be justified, the entrepreneur will not only have to comply with the ruling issued in the case (e.g. prohibiting further activities causing immission), but will also be charged with the obligation to cover the costs of the trial. They can be high, as they include not only the claim fee and the remuneration of the plaintiff's professional attorney, but also the expenses incurred in the case, for example in the form of the fees of experts appointed to assess the level of immissions and their harmfulness.

According to the judgment of the Supreme Court of June 3, 1983, issued in the case file ref. III CRN 100/83, the negative claim applies not only to the immission of the already existing ones, but also to the failure to prepare for actions which could result in harmful immissions.

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The trader can pay compensation to the neighbor

In some situations, the negative action described above is not sufficient to satisfy all claims of the aggrieved neighbors. If the damages caused by the entrepreneur's actions are of such a nature that the failure to act will not solve the problem, the persons affected by the harmful actions may claim compensation on the basis of general principles.

Such a position was confirmed by the jurisprudence of the courts - in the judgment of the Supreme Court of 21 January 1976, issued in the case no. III CRN 367/75, it was explicitly indicated that "Art. 144 of the Civil Code applies not only when the owner of a neighboring property suffers damage, but also when the owner of the neighboring property, while exercising his rights, interferes with the use of neighboring properties above average, resulting from the socio-economic destination of the property and local relations (e.g. construction of a concrete pavement) caused excessive runoff of rainwater onto the neighboring property). On the other hand, if the disturbance causes too much damage, then the person who suffers the damage may claim compensation on general terms (Art. 415 of the Civil Code et seq.) ”.

"If the entrepreneur, by allowing immission, caused damage to a neighbor affected by the harmful effects of the entrepreneur's property, the aggrieved entity may demand compensation to be awarded on his behalf. "Whoever caused another loss by his own fault, is obliged to repair it."

In the course of proceedings for payment as compensation for damage, the court will examine whether the conditions for the so-called tort liability resulting from the provision of art. 415 of the Civil Code:

  • the aggrieved neighbor has in fact suffered damage, i.e. damage to his property, usually of a material nature;

  • the damage was caused by the unlawful action of the perpetrator of immission;

  • there is an adequate causal link between the damage and the perpetrator's action.

The above-mentioned conditions must be met cumulatively. In an immission action, the harm may not only be the loss actually suffered (for example, the need to drain the land), but also a decline in the value of the property.