Encroachment over the property boundary: toleration or removal?
If a building inadvertently projects over the property boundary (encroachment), you may under certain circumstances have to tolerate it, namely when the builder is not chargeable with intent or gross negligence and you did not object in good time. As compensation you are then entitled to a monetary rent. Otherwise, removal may come into consideration.
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What you should do now
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1. Establish the encroachment
Clarify by survey whether and how far the structure projects over the boundary.
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2. Check the fault
Was the encroachment inadvertent or intentional/grossly negligent? On this depends whether you have to tolerate it.
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3. Object in good time
Upon becoming aware, object immediately if you do not want to accept the encroachment, otherwise a duty to tolerate can arise.
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4. Rent or removal
If you have to tolerate it, demand the encroachment rent. Otherwise removal comes into consideration. Given the significance, legal advice is advisable.
How to spot the scam
- An extension visibly projects over the boundary and you learn of it only late.
- The neighbor deliberately builds over the boundary despite being warned.
- There is a dispute over the amount of the encroachment rent.
Frequently asked questions
Do I have to tolerate an encroachment?
Under certain circumstances yes: if the neighbor built over the boundary without intent and without gross negligence and you did not object immediately upon becoming aware, a duty to tolerate exists (§ 912 BGB). As compensation you are entitled to an encroachment rent.
When can I demand removal?
When the neighbor built over the boundary intentionally or with gross negligence, or when you objected in good time, immediately upon becoming aware. Then no duty to tolerate arises and you can demand the removal.
What is the encroachment rent?
A monetary rent as compensation for having to tolerate the part of the building projecting over the boundary. It compensates for the use of your property. There are court standards for its amount in the event of a dispute.
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General information for self-help, not legal advice (RDG). In case of a high loss or uncertainty: contact a consumer advice center or a lawyer.