My papers that have been dealing with issues relating to neighbours’ rights discussed court decisions, resolutions made in civil or public administration authority proceedings.
This method gives a quasi horizontal description of how the current court practice settles legal disputes arising in relation with Section 100-106 of the Civil Code (Ptk).
This current paper uses a vertical approach to discuss neighbours’ rights issues on a lower level – on the level of municipality orders – by examining the resolutions of the Constitutional Court (AB).
The AB Resolution No. 947/B/1997 shows the relationship of Section 106 of Act IV of 1959 on the Civil Code and Section 21 of the Statutory Decree No. 11 of 1960 on its entry into force and implementation to Section 8 (2) of the Constitution.
The provision of the Civil Code referred to above makes it possible for rules of a lower level than a law to establish provisions on neighbours’ rights – even ones that are different from the Civil Code.
Section 8 (2) of the Constitution states that rules applicable to fundamental rights can only be established by law.
Since neighbours’ rights affect proprietary rights and/or its partial authorisations, the question arises whether a municipal order can at all lay down rules that is putting a limitation on proprietary rights or whether the rule thus created can include regulation contradictory to the provisions of Civil Code putting a limitation on proprietary rights.
My view is that in the reasoning of the AB resolution, the Constitutional Court has thrown light on the essence of the regulation on neighbours’ rights as follows:
‘The Civil Code is a fundamental and comprehensive regulation of the civil legal relations, but it cannot give a detailed regulation on all possible civil legal issues, therefore, at a number of points it allows other rules of law to formulate further provisions.’
The AB Resolution No. 64/1991 (XII.17) has pointed out that not all types of fundamental rights require regulation on the level of law. The reasoning by the Constitutional Court:
‘The content of a fundamental right can only be determined and its essential guarantees can only be established by law, furthermore, a direct and significant limitation on a fundamental right must also be established by law. In case of an indirect and distant correlation, however, regulation on the level of an order is sufficient.
If it were not so everything should be regulated by law.
Conclusively the intensity of its relationship to the fundamental right will determine whether it is to be established by law or not.’
In case of neighbours’ rights requiring regulation exclusively on the level of law would be unjustified.
The Constitutional Court states:
‘Section 100 of the Civil Code formulates a general rule when it says: ‘In the course of the use of an object the owner shall refrain from all behaviour that may disturb other people, in particular his neighbours, to an unnecessary extent or whereby he endangers the exercise of their rights.’ The Civil Code however does not give a list of these disturbing and endangering behaviours (it would not be possible), instead Section 101-105 of Civil Code regulates some often recurring cases and allows for deviation from these provisions in favour of other rules of law or other parties.
The Constitutional Court also points out that as long as the regulation does not contain public authority interference with proprietary rights, that is, it is not the limitation of proprietary rights by public law that we are talking about – which requires regulation on the level of law – limitation of proprietary rights is out of question.
Whether a given regulation is contradictory to the Constitution – owing to the applied regulation method – can only be decided on the basis of the examination of the regulation of neighbours’ rights on a level lower than law.
When examining, case by case, municipal orders applicable to neigbours’ rights issues, the Constitutional Court passes a decision on whether the authorisation by the rule of law was applicable to the regulation by the municipality and what correlation can be establish between the regulation and the fundamental rights.
On the basis of the submissions to the Constitutional Court requesting the Court to establish that certain orders referred to below are in contradiction with the Constitution, and on the basis of the reasoning in principle of the Constitutional Court I have ascertained that two areas have to be distinguished that are significantly affected and that are regulated by lower level rule of law.
1. Municipal orders on building rights created in relation with related building penalty, the regulating provisions of the General Master Plan, the approval of the Building Code and the Regulation Plan, the National Building Code and the placement of advertising equipment and advertisement on properties privately owned focusing on the settlement of issues relating to neighbours’ rights and to be examined from the aspect of the Constitution.
(AB Resolution No. 36/B/1993, AB Resolution No. 995/B/1994, AB Resolution No. 285/B/1994, AB Resolution No. 353/D/2003, AB Resolution No. 774/B/2004, AB Resolution No. 340/F/2005, AB Resolution No. 811/H/1997)
2. Municipal orders created on the limitation of keeping animals, keeping bees, keeping dogs, fishing, dealing with the settlement of neighbours’ rights issues and to be examined from the aspect of the constitutionality.
(AB Resolution No. 1/2003 (I.14.), AB Resolution No. 27/2004 (VII.7.), AB Resolution No. 6/1995 (II.22.), AB Resolution No. 1423/B/2007, AB Resolution No. 933/B/1992, AB Resolution No. 14/2001 (V.14.))
Legal consequences of building without a permit
I. AB Resolution No. 36/B/1993:
The Constitutional Court resolution referred to contains essential statements with regard to building law issues.
The resolution describes a case known in practice, where the party intending to build a building submits an application to the authority for a building permit and the owner of one of the neighbouring properties uses his right to submit an appeal, for that reason the building permit cannot become effective, what is more, it becomes clear about the owner of the neighbouring property that he intends to go as far as the last opportunity for legal remedy. A building administration penalty is imposed on the party carrying out the building because he had the building constructed without an effective building permit.
It is a case well-known from civil lawsuits, where construction is realised without a permit or by deviation from the permit or the appellant uses his right to submit an appeal only because he does not know that in a public administration procedure he has no way to validate his claim for damages or his claim for his neighbours’ rights, this is why he attacks the resolution issued by the public administration organisation.
The Constitutional Court points out that the appeal by the owner of the neighbouring property, or his claim for legal remedy cannot be the basis of the compensation for the neighbour.
In its reasoning, the Constitutional Court explains that in accordance with the Civil Code compensation is due only for damages caused unlawfully.
In that case the neighbour would cause a damage only in case he exercised his rights due to him under law in bad faith, or if he abused these rights.
The proper exercise of one’s right to legal remedy provided for in rule of law cannot be an abuse of one’s right or the exercise of one’s right in bad faith.
An abuse of one’s right, or the exercise of one’s right in bad faith can be substantiated by the behaviour of the party during the time of the procedure and by his attitude to the settlement of the issue.
Amendment of the General Master Plan
I. AB Resolution No. 353/D/2003 – AB Resolution No. 995/B/2004
The Constitutional Court explains that it is possible to apply a different zoning after the coordination of the General Master Plan with the social and professional fora provided for in the applicable rule of law has been conducted.
In the case referred to the Applicant in his submission objected to the reclassification of a resort zone to residential zone by the Diósd Municipality.
He found it prejudicial that the reclassification alters the currently free standing building up potential, as under the new rule of law only building up on the border of the plot will be possible in these zones, which may hinder the further extension of the existing buildings.
The Constitutional Court does not find it prejudicial not even for the existing buildings, and the reasoning of the resolution contains the following:
‘Naturally, a building situated on the border of a plot may be more detrimental to a neighbour than a free standing building. However, the owner of each neighbouring plot must suffer uniformly without any distinction the same detriment. Although, in case the building rules prescribe a mandatory distance from the border, the first builder cannot obtain a more favourable situation as the provisions applicable to the protective zones will affect the owners of the neighbouring properties equally and in the same way.’
In accordance with the resolution of the Constitutional Court referred to – aimed at establishing that Section 12 of the Master Plan of Balatonvilágos is in contradiction with the Constitution – the content of the property protected as a fundamental right must be protected by the current (constitutional) public law and private law limitations. It does not consider the different zoning of two adjacent properties – which may mean that it is permitted to build on one and not permitted to build on the other – a discrimination, since it established different regulation on different subjects of the law as it derives from the legal regulation.
The resolution makes it clear that having property right over a plot of land does not give anyone the subjective right to carry out construction on the land owned by him and to establish a building plot from his land for the purpose of constructing a building. Only the owners of the construction areas declared to be suitable for building up in accordance with the constitutional provisions of law are invested with the subjective right to build up their land.
If a rule of law introduces prohibition on plot establishment and construction to prevent the further increase of built-up areas on areas that were not allowed to be built-up under the former provisions of law, it cannot be considered a limitation of proprietary rights in contradiction with the constitution.
The provisions of the National Building Code
I. AB Resolution No. 285/B/1994
The applicant in his submission to the Constitutional Court found a provision of the National Building Code deleterious, which says:
‘In case of an individual plot on the area of a block of plots built-up for the most part, which was not permitted to be built-up otherwise in accordance with the provisions of the Code, in the course of an area use or building permit procedure the Building Authority may give a permission for construction in line with the general building-up of the block of plots which is different than the zoning provisions under the condition that it cannot hinder the building-up of the adjacent building plots and cannot interfere with their proper use.’
This way the rate of building-up and the permitted smallest and largest distance between the structures may be increased to the extent as prescribed in the rule of law.
The explanation of the Constitutional Court says that it is an exceptional situation where, when applied, the proceeding authorities must pay high attention to the elimination of a conflict of contradictory interests.
Furthermore, it confirms the opinion of the Constitutional Court emphasized many times whereas proprietary rights are not rights that cannot be limited, they may be limited out of public interest or private interest deserving special appreciation.
On the approval of the Building Code and the Regulation Plan
I. AB Resolution No. 774/B/2004
In the lawsuit in process and presented to him the Judge of the Győr-Moson-Sopron County Court initiated the establishment of the municipal order on the approval of the Building Code and Regulation Plan of the City of Győr as being in contradiction with the Constitution.
The initiator referred to the fact that the L/7 zone residential area belongs to a rural zone where the permitted number of flats cannot exceed the number prescribed for the garden city (L/6) zone.
On a plot having a size many times more than the regulated minimum size in the given zone, a proportionately higher number of flats can also be permitted on the basis of discretion applied during the permitting procedure in principle, while also adhering with the requirements of fitting.
The municipal order does not contain any further provisions, in cases like that the provisions of OTÉK (National Settlements Development and Building Requirements) are applicable.
In accordance with the above, and in proportion with the size of the plot the construction of a larger number of flats can also be permitted, which means in a rural zone residential buildings with a number of flats characteristic of garden city residential areas may be permitted to be built.
The proposer says that this regulation severely violates the rights of those living in a rural residential environment by practically establishing garden city like residential area in their residential area, thereby it violates the interest of the village inhabitants and, in contrast with the interest of the public, it gives space to the individual interest of the construction entrepreneurs.
The Constitutional Court rejected the proposal and established that it is not in conflict neither with the provisions of Ét. nor with those of OTÉK, and confirmed that those administering legislation cannot go beyond the provisions of the central rules of law. Furthermore, compliance with the rules of fitting with the existing environment is a subject of discretion to be applied not by the legislator but by the administrator of the law.
Apparently, here, the Constitutional Court referred to the fact that it is the Building Authority proceeding at the level of first instance that has the right to examine the rules of fitting.
The rule of fitting in the first place means whether the built-up structures or the built-up environment to be established fits to its environment, or whether they do not restrict the building-up or use of the adjacent plots in accordance with the zoning provisions.
My paper currently does not contain the data stock to be assessed at the Building Authority of first instance; the estimation of that will be the subject of a separate paper.
At the same time, I indicate at this point that with regard to the civil law examination of interference with neighbours’ rights disregarded partially or fully in authority procedures, the prejudicial situation above should be considered or if necessary should be made avoidable by the further regulation of these rules of law.
On the subject of conflict of competences
I. AB Resolution No. 370/F/2005
The Constitutional Court resolution referred to makes it clear that the judgement in case of damage claims in relation with neighbours’ rights is a competence of the Civil Court irrespective of whether the legal remedy exercised or not validated was exercised against the building permit or the putting into use permit in the official procedure.
On keeping animals
I. AB Resolution No. 1/2003.(I.14.)
In the frame of a statutory procedure the Pest County Public Administration Office called on the Dunakeszi Municipality who met the requirements of the call in part and did not correct the Order No. 15/1995. (XII.18.) as requested.
The Constitutional Court declared point c) of Section 10 (1) of the Order to be in contradiction with the constitution.
‘Section 10 (1) a) On the territory of the city on closed yards of family houses with a garden more than 2 dogs or cats can only be kept with the written consent of the neighbours. This limitation is not applicable to progeny of dogs and cats up to the age of 3 months.
b) In flats with no garden or in buildings with a number of flats maximum 1 dog, 1 cat and its progeny up to the age of 3 months can be kept in each flat.
c) In flats of residential buildings having a number of flats dogs can only be kept with the preliminary written consent of the residents living in the flats above and under, and on the same level where the flat of the keeper of the dog can be found.
d) The limitation contained in point 3 is not applicable to keeping blind leading dogs.
In its reasoning, the Constitutional Court explains that the declaration of consent from the neighbours required as a prerequisite of keeping a dog in itself does not infringe the requirement of legal security, this type of declaration infringes proprietary rights, affects proprietary rights, and its application is in contradiction with the constitution if the preliminary written consent required extensively leads to a disproportionate limitation.
In accordance with the practice of the Constitutional Court proprietary rights are not unlimited, in the course of exercising their rights proprietors must consider the rights and lawful interest of others. The limitation of proprietary rights as fundamental rights is constitutional if the protection or validation of another fundamental right or any other constitutional objective cannot be attained in any other way and the limitation is proportionate to the significance of the target intended to be attained.
At the same the Constitutional Court also points out that the civil legal protection of property under the Civil Code (Section X, Civil Code) is not identical with the tools of protecting a property in accordance with the Constitution.
The content of the property protected as a fundamental right must be understood together with the current (constitutional) public law and private law limitations.
The present case also shows that sometimes there are cases, where the municipality is regulating issues that have not been affected by higher level rules of law.
The municipal order has fundamentally been created in order to prevent further legal disputes and to protect the peaceful coexistence of the local residential community.
Local communities are entitled to create rules of law whereby they can prevent further legal disputes between residents.
With regard to the order regulating the keeping of animals, the Constitutional Court considers the statutory provisions on the limitation of legislators’ competences, the specific features of residential buildings, the size of flats, the circle of affected persons and their eventual quality as proprietors, as well as whether keeping animals in the given case really poses a threat to the peaceful coexistence of the members of the residential community.
The preliminary written consent required extensively may present a disproportionate limitation of proprietors’ rights.
With regard to Section 10 (1) c) of the Municipal Order, the Constitutional Court has established that the local municipality made keeping a dog dependent on the extensive consent of all the residents living in flats above, under and on the same level as the keeper of the dog, whereby it has disproportionately limited proprietary rights (to the undisturbed use of one’s flat).
On keeping animals
I. AB Resolution No. 27/2004 (VII.7.)
When examining the Order No. 19/2001 (V.7.) of Miskolc County Seat City Municipality on keeping animals from the point of the view of constitutionality, in the focal point of the Constitutional Court resolution referred to it was examined whether on the basis of the order it is possible to terminate animal keeping if, within one year, a repeated and well-supported report is submitted.
In addition to repealing the above provision from the rule of law referred to, the Constitutional Court expressly underlines that in respect of animal keeping – if the animal is noisy or out of other reasons disturbs the possession of others, that of the neighbours in particular – on the basis of Section 191 of the Civil Code, a procedure by the notary in relation with the protection of property may be conducted within a year dated from the disturbance of possession.
In that respect the notary can be requested to terminate disturbance and/or to restore the original conditions.
This Order created a provision which is in contradiction with the provisions of the Civil Code, the rules of law of a higher level.
In accordance with the content of the Order, the completion of the fact of disturbance is sufficient under the Civil Code, the regulation however imposes further limitation as it stipulates that the notary can only proceed in case of a well-supported report.
On keeping bees
I. AB Resolution No. 6/1995 (II.22.):
Section 7 (4) of Order No. 14/1991 (XI.15) of the General Assembly of Zalaegerszeg County Seat on keeping animals is in contradiction with the Constitution.
The provision in contradiction with the Constitution says:
‘Keeping bees can only be permitted on the outer area of the city, at a distance of 250 m from the border of the inner area in a close garden with the consent of the owners of the neighbouring plots on the basis of a single application.’
At the same time, Act No. 3 of year 1981 on animal health straightforwardly stipulates that in the yard of a residential building with a number of flats and in its garden of common use a bee farm can only be established with the consent of the tenants of all flats. A bee farm can only be established at a distance of 4 m from buildings of common use and from neighbouring properties and beyond the distance of 10 m measured from the external edge of water draining ditches along the roads in case of roads (public roads, roads of private use). Owners of roads of private use may give permission for placing bee hives on or along the roads in case of their temporary closure.
In case the distance of 4 m from the adjacent property cannot be maintained, flying off for the bees must be ensured in the opposite direction by either establishing an at least 2 m high solid fence or by establishing a live hedge.
By comparing the orders quoted it may be ascertained that the order by the Zalaegerszeg Municipality intended to regulate the order of bee keeping is in contradiction with the Constitution as it has introduced a limitation by infringing a higher level rule of law since it has prohibited the keeping of bees in inner areas and made permission subject to a single application.
On the limitation of keeping dogs
I. AB Resolution No. 1423/B/2007
The Constitutional court has examined the Order No. 41/2004 (XI.15.) of the Municipality of District XVI in the capital city of Budapest on keeping animals in the frame of a subsequent standard review and has not found it in contradiction with the Constitution.
Under the municipal order referred to, dog and cat keeping has become limited in the sense that the maximum number of animals that may be kept without a permit or with a permit has been determined.
The Constitutional Court has explained that rendering dog or cat keeping in certain cases subject to the consent by the neighbours can be understood as a limitation of proprietorship.
This limitation however, which is explained by the Constitutional Court in the Resolution of AB No. 46/2006 (X.5.) contains the following:
‘Section 8 (2) of the Constitution determines the general rule on the limitation of fundamental rights. According to the practice of the Constitutional Court on the basis of Section 8 (2) the limitation of a fundamental right can only be considered constitutional if the limitation is laid down in law, this limitation is necessary and is proportionate compared to the target to be attained.
The principle applied in the estimation of a limitation in more details: a fundamental right may only be limited if the protection or validation of another fundamental right or liberty cannot be attained in any other way, provided that the significance of the target to be attained and the weight of the infringement of the fundamental rights caused in the interest thereof are appropriate and are in proportion with each other.
I. AB Resolution No. 933/B/2003
The Constitutional Court rejected the proposal to establish the contradiction of Section 10 of Act 30 of 1977 on fishing with the Constitution.
The Applicant argued that in accordance with the rule of law referred to:
‘the proprietor, user or manager of the land lying on the shores/banks shall tolerate that the persons entitled to do fishing use the land for movement and pursuing fishing activities there in such a manner that it does not hinder the proper use of the area.
After the repeal of that order, it was replaced by the following rule of law:
‘Section 15 (1) The owner, user of a property affected by the pursuit of fishing right shall tolerate – in the absence of a different agreement – or make it possible for the person entitled to have access to the water body across his property – unless it is possible in some other way – by adhering to the limitations laid down in separate rules of law, to place fish catching tools during the time of fishing activity on the property and/or use such tools, pursue fishing activities and transport off the catch. (fishing easement right)
(2) In case of flooding covering also the property on the banks, the proprietor thereof shall tolerate or make it possible to re-transfer young fish into the water area used for fishing.
(3) The proprietor, user of the property is entitled to compensation for damages arising from the limitation under sub-sections (1) –(2).
In accordance with the position of the Constitutional Court, the Hungarian legal system contains a number of different forms of limitations on proprietorship similar to the obligation of toleration considered a grievance in the submission. Neighbours’ rights and easement rights are of similar content irrespective of whether they serve public or private interest. From the point of view of constitutionalism, these rights can only be objected in the given case if they impose disproportionately high burden on the proprietor.
The rule of law does not oblige the owner of the land on the banks to tolerate a burden disproportionately and unjustifiably high vis-à-vis the person exercising his fishing rights.
Therefore, Section 106 of the Civil Code provides in relation with the rules on neighbours’ rights that ‘a rule of law or an agreement of the parties may deviate from the provisions of the Act applicable to neighbours’ rights.’ Ptké (Statutory law on the entry into force and implementation of the Civil Code) lays down the following: ‘An order of the municipal self government may establish rules on neighbours’ rights different than the provisions of the Civil Code.’
On the basis of that, the Constitutional Court has the position that the provisions of the Civil Code and Ptké make it possible for the municipalities to establish their own rules replacing and/or supplementing certain rules of the Civil Code and in accordance with their local conditions.
Analysing the practice of the Constitutional Court, the legal cases above show that, with respect to the regulation of neighbours’ rights, in limitation of proprietorship, proportionately must be considered.