Adjudication Rules for Adjacent Relationship Disputes (4)

Adjudication Rules for Adjacent Relationship Disputes (4)

33. Reference case: Wang v. a breeding park in Jinzhou, a dispute over liability for marine pollution damage

[Summary of the trial]:

Whether the discharge of pollutants is used for personal and family needs is the key to correctly distinguish between adjacent pollution infringement cases and environmental pollution infringement cases. Where the owner of adjacent immovable property distributes pollutants in the course of production and business and causes damage to the property rights and interests of others, the relevant provisions on environmental pollution infringement shall apply.

Case Number: :(2019) Liao Min Zhong No. 983

34. When exercising its rights, the adjacent party of immovable property shall not obstruct the normal lighting of the adjacent party -- Han Yong et al. v. Abulahat and Turpan Xintuoxin Industry and Trade Co., Ltd

[Summary of the trial]:

If one party adjacent to the immovable property places articles on its windowsill and affects the lighting of the adjacent party, it shall make necessary adjustments and restrictions on the height of the items placed on it, and shall not affect the normal lighting of the adjacent party.

Case No.: :(2002) Tu Zhong Fa Min Zhong Zi No. 448

Source of the case: "Compendium of China's Trial Cases (2003 Civil Trial Case Volume)"

35. Claiming that there should be a fact that the nuisance should be obstructed or may be obstructed in the exclusion of the nuisance right -- Yan X 1 et al. v. Yan X 2 et al., a dispute over the exclusion of nuisance

[Summary of the trial]:

If the tenant of the house changes the dwelling into a business house without permission, the interested owner has the right to claim the removal of the nuisance and demand that the residential use of the house be restored. However, in the course of the trial of the case, the tenant of the house has already moved out of the house and chose another place to operate, so the fact that the property right is or may be obstructed has been ruled out. Where the interested owner continues to insist on the right to exclude the nuisance, it is not supported.

Case Number: :(2022) Jin 0112 Min Chu No. 4376

36. The act of constructing structures on the fire corridor of a residential building without authorization has affected the ventilation and lighting in the adjacent rooms, and should be restored to its original state -- Wang Bin, Li Wenhui, and Zhao Shuzheng adjacent to the ventilation dispute case

[Summary of the trial]:

In the event of contradictions, the two sides shall fully communicate with each other, be considerate of each other, bear appropriate obligations of tolerance, and correctly handle neighboring relations in accordance with the principles of conducive to production, convenient life, solidarity and mutual assistance, and fairness and reasonableness. However, the unauthorized construction of structures on the fire corridors of residential buildings not only violates the public order and good customs of harmonious coexistence and mutual understanding between neighbors, but also affects the ventilation and lighting of adjacent rooms, and has even been determined to be a new illegal construction, and the court should make a judgment to restore the original state.

[Case Number] :(2021) Su 03 Min Zhong No. 330

37. Whether the right of neighboring can be claimed for illegal buildings -- Yang Mouguo v. Li Moulan, a case of adjacency relationship

【Case Focus】:

Can neighbouring rights be claimed for illegal buildings?

[Summary of the trial]:

The People's Court of Chengkou County, Chongqing Municipality, held that the adjacency relationship refers to the relationship of rights and obligations between the owners, usufruct owners or occupiers of immovable property adjacent to each other when exercising the ownership and use rights of the immovable property, and that the adjacent rights holders of immovable property shall correctly handle the adjacent relationship in accordance with the principles of conducive to production, convenience of life, solidarity and mutual assistance, fairness and reasonableness. In this case, Yang Mouguo claimed rights according to the adjacency relationship, and Li Moulan believed that the house involved in the case 1 was an illegal building, and Yang Mouguo did not enjoy the ownership of the house, nor was it the actual occupant of the house, and there was no adjacency between the two parties, but after court investigation, although the house 1 involved in the case had not been registered as the property right of the house, Yang Mouguo, as the buyer of the house, had formed a factual state of possession based on the actual management and control, and as the occupant of the house 1 involved in the case, he had the right to claim rights according to the adjacency. After Li Moulan obtained the ownership of the house 2 involved in the case, she believed that the upstairs passage was included in her real estate certificate, so the only passage upstairs was locked, resulting in Yang Mouguo being unable to pass to the house 1 involved in the case, and the essence of the adjacency relationship was that the real estate rights of the adjacent party need to be extended to the real estate of the adjacent party when exercising, and the adjacent party should tolerate the expansion of the real estate rights of the adjacent party in the exercise, and even need to provide convenience. Although the passage is now included in Li Moulan's real estate certificate, Yang Mouguo, as the occupier of house 1 involved in the case, requested Li Moulan to eliminate the obstruction of his passage based on the adjacency relationship, which is in accordance with the law and is supported. Moreover, Yang Mouguo purchased the house involved in the case 1 first, and Li Moulan obtained the ownership of the house 2 involved in the case later, so it is reasonable that Li Moulan should open the common channel. In addition, when Li Moulan obtained the house involved in the case 2 by auction, the auction announcement clearly informed the defects of the auction item, and Li Moulan clearly knew the existence of house 1 involved in the case, but still purchased the house 2 involved in the case, and she should facilitate the passage of Yang Mouguo. As to whether the house 1 involved in the case purchased by Yang Mouguo is an illegal building, the administrative department should determine and deal with it in accordance with law, and this judgment does not affect the future characterization or disposition of the house 1 involved in the case by the relevant departments in accordance with law.

After trial, the Chongqing No. 2 Intermediate People's Court held that: before the house involved in the case was not identified as an illegal building, Yang Mouguo obtained the right to occupy and live in the house involved in the case by way of sale, and when Li Moulan auctioned, he knew that the legality and ownership of the roof garden built on the fifth floor and the building built on the sixth floor were not clear and were not within the scope of the auction. Before house 1 involved in the case was not identified as an illegal building and demolished, Li Moulan should set aside a passage for Yang Mouguo to pass, and the passage set aside does not affect the determination of the government functional departments on whether the house involved in the case is an illegal building.

[Judge's Interpretation]:

1. The plaintiff has a possessive interest in the immovable property based on the fact of possession

In our daily practice, it is not uncommon for new buildings, expansions and renovations to be built without the approval of the urban planning department. This kind of building is an illegal building, and the actor cannot complete the corresponding registration of real estate property rights, so the actor cannot obtain the ownership of the illegal building. However, the legitimate interests of the occupier of the illegal building are not exempt from the protection of the law. Possession is not defined in mainland law, and according to the provisions of Chapter 20 of the Civil Code of the People's Republic of China on "possession", possession refers to the de facto control and disposition of immovable or movable property. The possessor subjectively has the meaning of possession and objectively forms control over the object. Possession can be possession with or without the right of possession, i.e., possession is a de facto state and not a right. The reason why the law wants to protect possession is not necessarily to seek the protection of real rights, but because possession as a de facto state embodies the order of property, and the status quo of possession also constitutes an order of social life, so the law needs to maintain the stability of this order of property and life. In this case, Yang Mouguo purchased the building involved in the case from the construction actor, although he did not enjoy the ownership (this right), but due to his actual management and control, it also formed a kind of possession, and the possession interest of the building involved in the case was protected by law, and others could not infringe upon it at will.

2. The plaintiff may claim neighbouring rights on the basis of possession of the immovable property

Chapter VII of the Civil Code of the People's Republic of China stipulates that when an actor disposes of his own immovable property, he should not sacrifice the rights and interests of the adjacent party. The essence of the adjacent right of immovable property is a reasonable extension or necessary restriction on the exercise of the ownership or possession and use rights of immovable property by parties adjacent to immovable property. The adjacent right of immovable property is conferred by law, and its extension and restriction of the ownership or possession and use rights of the adjacent parties are permitted by law, and are the legal rights and obligations of the parties concerned. Article 291 of the Civil Code of the People's Republic of China stipulates that: "The owner of immovable property rights shall provide necessary facilitation to adjacent rights holders who must use their land for passage, etc. "The adjacent right holders here include not only the owner of the immovable property, but also the usufructuary and the occupier of the immovable property. Therefore, it should be noted that: first, the "provision of convenience" must be premised on the necessity of such use, and if such use is not necessary, the right holder can solve it by himself after making efforts, and the adjacent party may refuse to provide convenience to it: second, the party claiming the adjacent right should choose the convenience method that causes the least loss to the adjacent party. If necessary, appropriate compensation shall be made for the losses caused to others. The right of way is the basic right of survival of citizens in the adjacent relationship, and the right holder should not block the passage that has been historically formed within the building of the adjacent party, so as not to hinder the production and life of the adjacent party. In this case, whether Yang enjoys the adjacent right of way should be determined based on the time of construction (occupation) of the houses of both parties, the purpose of passage, and the historical status and current situation of the passage. Due to the historical formation of the passage, Li Moulan, which is now the only passage for Yang's residential buildings, should follow the principle of public order and good customs to facilitate the passage of Yang's country.

3. The occupier shall enjoy the right of adjacency until the illegal building is demolished

A neighbouring right is a right that arises between two adjacent immovable properties. The adjacency relationship is dependent on the immovable property and is not changed by the change of the owner or occupier of the immovable property, but if the immovable property is lost, the adjacency relationship ceases to exist. There is a view that illegal buildings should be identified and demolished by government functional departments, and if a party files a lawsuit on the grounds that it enjoys the right to adjacent illegal buildings, it does not fall within the scope of civil cases accepted by the court, and the court should not accept it. In fact, whether the building is illegally built and the adjacent rights are two legal issues, which belong to different legal adjustments. Before the building is not recognized as an illegal building by the relevant departments in accordance with the law and legally demolished, the factual state of its occupation of the building and the right of residence shall be protected by law, and when the adjacent rights are infringed, the occupier can still claim the corresponding rights, but the adjacent right is limited to a certain extent due to the illegality of the building itself, such as the right holder cannot require the other party to restore the original state (alternatively, the other party may be required to compensate for losses). Therefore, a lawsuit filed by a party on the grounds of enjoying the right to be adjacent to an illegal building falls within the scope of civil infringement, and the people's court should accept it in accordance with law to safeguard the possessive interests of the occupier. In this case, Yang Mouguo had lived in the house involved in the case for a long time, and because he enjoyed certain legitimate rights and interests in the possession of the house in question, his right of residence and adjacent right of way should be protected before the house involved in the case was not recognized as an illegal building by the relevant departments in accordance with the law and legally demolished.

Case Number: :(2020) Yu 02 Min Zhong No. 2502

38. Identification and Handling of Infringement of Neighboring Rights by Breeding Pigeons in Residential Buildings -- Fu X 1 and Fu X 2 v. Xu X Neighboring Relationship Case

【Case Focus】:

The boundary determination of the freedom of pigeon breeders and the tolerance obligations of neighbors,

[Summary of the trial]:

The People's Court of Yubei District, Chongqing Municipality, held that the two parties in this case had built a pigeon coop outside the air-conditioning unit outside his bedroom and outside the balcony for the downstairs and upstairs adjacent relationship Xu to raise more than 10 carrier pigeons, which affected the life of Fu 1 and Fu 2 and brought certain health problems, and Fu 1 and Fu 2 requested Xu to dismantle the pigeon loft and ancillary facilities, stop raising carrier pigeons here to eliminate the nuisance to his life, and restore the state, in accordance with the provisions of Articles 84 and 89 of the Property Law of the People's Republic of China.

Chongqing No. 1 Intermediate People's Court held that the pigeon activity is a beneficial mass sport, not only at home and abroad, but also for national defense communications, scientific research, earthquake prediction, ecological environment, etc., so Xu after obtaining the corresponding qualifications to raise carrier pigeons is not only understandable, but also worthy of advocating and encouraging. However, they should raise pigeons in a civilized manner, especially in the high-rise residential buildings where the residents involved in the case are concentrated, and should pay more attention to handling the relationship between neighbors to avoid unnecessary obstruction to the peace and tranquility of their neighbors. The jumping cage built by Xu outside the balcony did not meet the requirements of the Chongqing Municipal Sports Bureau, the Public Security Bureau, the Planning Bureau, and the Municipal Management Committee in the "Notice on Strengthening the Management of Pigeons" that the construction of sheds on the balcony should not exceed the balcony handrails. At the same time, although Xu has the right to use the air-conditioning space outside his bedroom free of charge, it should meet reasonable needs, not violate laws, regulations, and management regulations, and must not harm the legitimate rights and interests of others. Xu's behavior of installing metal protective nets to build a pigeon loft and building a jumping cage outside the balcony where the air conditioner should have been installed led to the cries and take-off sounds of more than a dozen carrier pigeons he raised, and the noise generated by his cleaning of the pigeon loft, which had a great impact on the peaceful life of Fu 1 and Fu 2; Moreover, the feathers, feces and the resulting smell dropped by more than a dozen carrier pigeons on the balcony also had an adverse impact on the normal living and sanitary environment of Fu X 1 and Fu X 2, and exceeded the necessary limits that should be tolerated by the adjacent parties, so the obstruction should be removed.

[Judge's Interpretation]:

According to the China Pigeon Association, there are more than 400,000 registered members of the pigeon associations at all levels in the mainland. Due to the gregarious nature of carrier pigeons, the habit of regular release, the sound they make, and the feces they produce, they often have a certain impact on the daily life and environmental sanitation of neighboring parties, resulting in disputes over neighboring rights from time to time. The legal issues reflected in this case are typical and representative, and have a certain reference role in handling adjacent dispute cases.

1. Duty of tolerance in neighbouring relationships

"Adjacency" refers to the relationship of rights and obligations directly regulated by laws and regulations in order to reconcile the contradictions between the two parties and balance the interests of the other owner when there is a conflict between the owners or users of adjacent immovable property and the free power of the owner of the other party. If ownership delimits the static boundary of the rights of both parties in a neighboring relationship, then the obligation of tolerance delimits the dynamic boundary of the use of immovable property by the owner of immovable property, which is related to the realization of rights to a certain extent. The adjacent relationship is essentially a relationship of rights and obligations to deal with the problems of the owners of adjacent immovable property rights and to tolerate the problems of damage, so the obligation to tolerate is the core of the adjacent relationship.

The Civil Code of the People's Republic of China provides for a special chapter on adjacency in the sub-section of ownership, which restricts and extends the application of the owner to immovable property by the adjacency. Whether it is the general principle of dealing with adjacent relations in Article 288 of the Civil Code of the People's Republic of China, the expression "provide necessary convenience" in Articles 290, 291 and 292, and the expression "shall not violate the provisions" or "shall not endanger security" in Articles 293 and 295, all of them can reflect the core position of the duty of tolerance in the adjacent relationship of the civil law of the People's Republic of China.

However, there should be certain limits to the restriction and extension of rights, and attention should be paid to controlling the reasonable limits of the rights of neighboring parties when delineating the dynamic boundaries of the rights of neighboring parties with the obligation of tolerance. As for the criteria for judging the reasonable limits of the tolerance obligation, there are three main criteria in theory: the criterion of substantial damage, the criterion of fault judgment and the criterion of weighing interests:

(1) Substantial damage standard. It refers to the degree of tolerance of ordinary people in society as the criterion for judging, which is an objective criterion, that is, without considering subjective factors, only based on whether a certain damage is a major damage that ordinary people cannot tolerate. For example, France's standard of "abnormality" of damage, Germany's theory of "locality", and Japan's theory of "tolerance limit".

(2) Criteria for judging fault. From the perspective of tort liability, it is believed that if the actor is at fault when committing a certain act, the adjacent party does not have the obligation to tolerate.

(3) Measure of interest. It means that when there is a conflict of interest between neighboring parties, it is necessary to coordinate and weigh various interests to determine which interest needs to be protected first, that is, the principle of "greater interest" in German civil law, which is also the embodiment of the principle of proportionality.

In the author's opinion, fault is the principle of attribution of tort liability, and taking fault as the limit of the tolerance obligation of the adjacent right holder obviously ignores the particularity of the adjacent relationship that is different from the general legal relationship. Since it is a tortious act, the owner of the adjacent immovable property has no obligation to tolerate the damage caused to the owner of the adjacent immovable property due to fault, but the application of the fault standard cannot cover the situation of causing damage to the owner of the adjacent immovable property without fault, and there is also no-fault liability in tort liability. Although the standard of substantive damage is conducive to the uniformity of the application of law, it does not take into account subjective factors at all, and may not be properly handled in some special cases. Interest weighing is called the "golden method" of law application by jurists, but "the essence of interest weighing is a subjective act of value judgment and choice" (1) It is easy to be influenced by the judge's personal subjective value judgment in the adjudication of individual cases, and interests may be misunderstood and misjudged. Therefore, in practice, the above three standards should not be completely separated, but should focus on comprehensive application and reasonably define the boundaries of the tolerance obligation from different dimensions.

2. Review of whether to demolish the pigeon loft

In pigeon breeding disputes, the plaintiff usually asks for a judgment to demolish the pigeon shed built by the defendant for the breeding of carrier pigeons. In this regard, it is not necessary to generalize, but to distinguish between different situations:

(1) The construction of the pigeon loft (including ancillary facilities) does not exceed the exclusive part of the building. The construction of a pigeon coop in the exclusive part of the building does not in itself affect the normal life of the adjacent rights holders. The construction of the loft and the keeping of carrier pigeons are independent acts, and when the construction of the pigeon shed does not exceed the exclusive part of the building, in principle, the litigation request of the adjacent right holder for the demolition of the pigeon loft will not be supported. However, when the construction of the pigeon coop endangers the safety of the building, or causes water leakage on the roof and damages the lawful rights and interests of the adjacent rights holder, the perpetrator shall be judged to remove the obstruction, repair or dismantle it according to the specific circumstances.

(2) The pigeon loft is erected beyond the exclusive part of the building. The second paragraph of Article 9 of Chapter 4 of the "Planning and Design Standards for Urban Residential Areas" stipulates that "the addition of any facilities outside the original design building shall not reduce the original sunshine standard of the adjacent residential buildings, except for the barrier-free renovation and installation of elevators in existing residential buildings". In addition to the above-mentioned Chongqing Municipality's "Notice on Strengthening the Management of Pigeons", the documents on the management of pigeon activities in Shanghai and other regions also make it clear that the pigeon order and its ancillary facilities shall not exceed the outer walls of buildings. Accordingly, the construction of the pigeon loft beyond the exclusive part of the building not only violates the local regulations on the construction of the pigeon shed, but also may hinder the lighting and sunshine of the adjacent building by causing the lower surface of the sunshine standard. If the affected neighbour sues for cessation of infringement, in principle, the perpetrator should be ordered to demolish the pigeon coop that exceeds the exclusive part of the building.

In this case, Xu lived on the middle floor of a residential building, and the pigeon coop (a metal protective net closed with a transparent plastic sheet) was also outside the balcony and occupied the location of the air-conditioning stand, which not only violated the provisions of the Notice on Strengthening the Management of Carrier Pigeons in Chongqing Municipality that the construction of a pigeon coop on the balcony shall not exceed the handrails of the balcony, but also violated the provisions of Article 9, Paragraph 2 of Chapter 4 of the "Planning and Design Standards for Urban Residential Areas" on the sunshine standard. And reinstated.

3. Review of prohibiting or restricting the breeding of carrier pigeons

If there is no prohibition in the law, it is free, and the current law in mainland China does not prohibit the breeding of carrier pigeons. Carrier pigeons have important practical value, and under the premise of not infringing on the legitimate rights and interests of neighboring rights holders, the behavior of raising carrier pigeons should be advocated and encouraged. It is only when the relevant breeding behavior causes adverse effects to adjacent related persons, it is appropriate to restrict or prohibit breeding in specific areas, rather than directly prohibiting breeding. However, there is no standard for the number of carrier pigeons to be bred in the current law, and the judge should make a judgment prohibiting or restricting the breeding of carrier pigeons on the basis of weighing interests in accordance with the basic principles of the Civil Code of the People's Republic of China on the legislative intent of adjacency relationship, the spirit of the civil law, and social appropriateness. The following factors should be considered in determining the reasonable tolerance limit of the adjacent right holder for the breeding of carrier pigeons:

(1) The specific situation of the community where the pigeon is raised, including the number of residential buildings, the distance between residential buildings, the floor where the breeder is located and the degree of gathering of residents.

(2) The number of carrier pigeons, as well as the size of the house involved in the case, the location of the pigeon loft, etc. In some cases, the perpetrator built the pigeon coop on the kitchen balcony or the dining room window sill, which may have a greater adverse impact on the adjacent parties than the viewing balcony.

(3) Whether the pigeon raised has a foot ring certificate issued by the pigeon association, and whether it is regularly vaccinated in accordance with the relevant requirements.

(4) Whether the time of releasing the carrier pigeon is too early or too late, whether the number of flights is too much, affecting the normal rest of the adjacent relationship, and whether to install soundproof facilities to reduce noise pollution.

(5) Whether the breeder regularly cleans and disinfects the pigeon loft, and whether measures are taken to prevent the carrier pigeon from dropping feathers or feces when taking off, affecting the normal ventilation, lighting, and drying of the adjacent parties' houses; and whether to install an exhaust system to reduce odour pollution.

In addition, it is also necessary to examine the basic information of the adjacent parties, such as the reasons for the defendant to raise carrier pigeons, whether it is a personal hobby or a survival need (relying on raising carrier pigeons for a living), as well as the plaintiff's age, physical health, family members (whether there are elderly and infirm elderly people, pregnant women, mothers or infants, etc.), home rest time, etc., as an important aid in accurately judging the reasonable tolerance obligation in the case. Finally, by weighing the interests of all parties, returning to people-oriented, realizing individual substantive justice and maximizing the interests of both parties. In this case, Xu kept about 20 carrier pigeons in a high-rise residential building where residents gathered. Although the carrier pigeons all have full ring certificates, because they did not take effective measures, the feathers and feces dropped by the carrier pigeons when they took off and the resulting odor seriously affected the ventilation and lighting of the houses of Fu 1 and Fu 2; At the same time, Xu did not install sound insulation facilities, resulting in the noise generated by the pigeon's cry, take-off sound, and the sound of Xu cleaning the pigeon loft, which seriously affected the normal rest of Fu 1 and Fu 2. In this case, taking into account the above-mentioned factors and the fact that the pigeon shed built by Xu exceeded the exclusive part of the building, it was only ruled that Xu was prohibited from raising carrier pigeons in the exclusive part of the building, but did not prohibit Xu from continuing to raise carrier pigeons in the house involved in the case, in order to find a balance between the freedom of raising pigeons and the peace of life of neighbors.

Case Number: :(2021) Yu 01 Min Zhong No. 2808

End of this topic.

Transferred from the same judgment rule for similar cases