In today’s world, where every square meter of land is of great importance, issues of good neighborliness are becoming particularly relevant. Conflicts between land owners can arise due to seemingly insignificant problems – fences, trees, construction or even the location of communications. However, such situations can turn into serious legal disputes, affecting not only good neighborly relations, but also the legal regulation of land use. Good neighborliness in land law is not just a matter of etiquette or moral norms, it is a legal institution designed to ensure a balance between the interests of neighbors.
What are the main principles of good neighborliness? How are such relations regulated in Ukrainian legislation? And most importantly, what to do when controversial situations arise that violate your rights as a land owner or user? IA “FAKT” turned to the “Repeshko and Partners” bar association for answers to these questions and comments.
There is no more relevant work in the world, which would describe the norms of good neighborliness, than the classic work of Ivan Nechuy – Levytsky “The Kaidash Family”. According to the plot of the work, among other things, a pear tree from Karpa Kaidash’s plot hangs over the moor and Lavrin’s children eat juicy, tasty fruits from it, which fall already on the neighboring plot, which in turn belongs to Lavrin Kaidash. Motrya, Karpa’s wife chases the children away, beats them. Kaidashi go to the priest to judge them and resolve the existing dispute. But the priest, seeing that no agreement is possible, chases them away. The Kaidashes are reconciled only by chance – the pear, which was the reason for the murder, dries up, and with it the reason for quarrels disappears. As we can see, this problem is not new, but as old as the world, but no less relevant in our time.
There is a whole section in the Land Code of Ukraine (Land Code of Ukraine) that regulates this very good neighborliness. So, according to Article 103 of the Civil Code of Ukraine:
- “Owners and land users of land plots must choose such methods of using land plots in accordance with their intended purpose, in which the owners and land users of neighboring land plots cause the least inconvenience (shading, smoke, unpleasant smells, noise pollution, etc.).
- Owners and land users of land plots are obliged not to use land plots in ways that do not allow owners, land users of neighboring land plots to use them for their intended purpose (impermissible influence).
- Owners and land users of land plots are obliged to cooperate in taking actions aimed at ensuring the rights to the land of each of them and the use of these plots with the introduction and observance of progressive technologies for growing agricultural crops and land protection (exchange of land plots, rational organization of territories, observance of crop rotation, installation, storage of border signs, etc.)”.
In the same code, it is stated that the owners and land users of land plots can demand the cessation of activities on the neighboring land plot, the implementation of which may lead to harmful effects on the health of people, animals, air, land plots, etc.
It should be noted that lawyers do not like litigation on this very issue, because usually neighbors are ready to kill each other for years and do not want to make concessions to each other. There are many examples of issues that arise from the norms of good neighborliness. Where should the fence be installed – 20 cm to the right or left on a length of 20 meters, which fence to put up, who should put it up, why should it be put up, facing whom should it be put up. These are only at first glance, insignificant questions, because a too high fence made of dense material prevents the access of sunlight to the neighbor’s plot of land, which kills the vegetable garden and handicrafts, and in general it becomes dark and damp in the residential building. Barns located close to a neighbor’s plot, in which birds and livestock are kept, threaten neighbors not only with unpleasant aromas, but also with the breeding of mice or rats. There are many options for violating the norms of good neighborliness, the question is where to go and what to do in such situations.
It should be noted right away that the law cannot foresee all cases that occur in real life, and therefore the articles of the code contain only general norms. In order to have an idea of how to act in this or that situation, it is sometimes necessary to study many additional regulatory acts – from State Building Standards (SBS) to provisions approved by local communities.
However, the “Kaidashev situation” turned out to be so widespread and massive that the Civil Code of Ukraine prescribes separate norms regarding it. Article 105 emphasizes:
“In the case of the penetration of tree roots and branches from one land plot to another, the owners and land users of land plots have the right to cut off the roots of trees and bushes that penetrate from the neighboring land plot, if such penetration is an obstacle to the use of the land plot for its intended purpose.”
In addition, Article 109 defines:
“The trees standing on the border of adjacent land plots, as well as the fruits of these trees, belong to the owners of these plots in equal parts. Each of the neighbors has the right to demand the elimination of trees standing on the common border. The costs of eliminating these trees are borne by the neighbors in equal parts. A neighbor who requires the removal of trees standing on the common boundary must bear the cost of removal of the trees alone if the other neighbor waives his rights to the trees. The requirement to eliminate trees (bushes) is excluded if they serve as boundary marks and, depending on the circumstances, cannot be replaced by other boundary marks.”
In addition, Article 96 of the Civil Code of Ukraine directly provides for the obligations of land users:
– not to violate the rights of owners of adjacent land plots and land users;
– observe the rules of good neighborliness and restrictions related to the establishment of land easements and protection zones;
– save geodetic signs, anti-erosion structures, networks of irrigation and drainage systems;
– prevent the burning of dry vegetation or its remains in violation of the procedure established by the central executive body, which ensures the formation of state policy in the field of environmental protection;
– to mow (with cleaning of the mown) and felling of land plots adjacent to peatlands, field protection forest strips, meadows, pastures, areas with steppe, wetland and other natural vegetation, in the right-of-ways of highways and railways.
Regarding the same fences. The method of establishing common borders between land plots is determined by the consent of the owners of such land plots. The costs of establishing common boundaries shall be borne by the owners of land plots in equal parts, unless otherwise established by agreement between them.
In general, if you search, regulatory documents regulate many issues that arise between neighbors, such as: the distance of residential buildings, cesspools from the boundary of the land plot, the distance of various types of plantings from the same boundary, as well as easement – the right to use someone else’s land plot, for example, the right of permanent passage or passage over someone else’s land plot. However, before entering into disputes with neighbors, we advise you to contact specialists and clarify the details of the existing situation in relation to the norms of the current legislation.
But what to do when neighbors can not agree on issues of good neighborliness? In order not to burden the courts with issues of fences and pears, an innovative article appeared in the Land Code, which determined that currently land disputes can be resolved through mediation. According to this rule, a land dispute can be settled through mediation in accordance with Law of Ukraine “About mediation”. Mediators facilitate the reconciliation of the parties to a land dispute, while the agreement on mediation and the agreement on the results of mediation in land disputes are concluded in writing. In case of non-fulfillment or improper fulfillment of the agreement as a result of the mediation, the parties to the mediation have the right to apply for consideration of the land dispute to the bodies that resolve land disputes. That is, mediation is a structured negotiation process in which a neutral third party, the mediator, organizes and manages the dialogue between the participants in the conflict. Mediation is a purely voluntary process, so it is important that both parties to the dispute agree to this method of conflict resolution. A mediator is a specially trained neutral, independent, impartial individual who conducts the mediation process. Mediation parties independently choose the mediator(s) and/or entity that ensures mediation. The mediator’s work is reduced to promoting a constructive dialogue between the parties, helping to identify the main issues and finding mutually acceptable solutions.
It should be noted that in the same United States of America, the majority of civil disputes are considered not by courts, but by mediators. Of course, there is a category of disputes that can be considered exclusively by the courts, but all others are considered by the courts only in the event that the conflict is not resolved through the mediation procedure. According to our legislation, if the neighbors flooded your apartment and spat on a lot of valuable and not-so-good things, we go to court, but US citizens first go to a mediator. And when the parties have not reached an agreement on the question of how much to compensate for an antique Persian hand-made carpet, that is when the dispute is brought to court. In our country, mediation remains an exclusively voluntary stage, but it can be quite effective and save the parties time and money.
According to the law, land disputes are traditionally resolved by two bodies: courts and local self-government bodies. At the same time, land disputes are considered by local self-government bodies based on the application of one of the parties within a week from the date of submission of the application and with the participation of interested parties, who must be notified in advance of the time and place of consideration of the dispute. If one of the parties is absent during the first resolution of the issue and there is no official agreement to consider the issue, the consideration of the dispute is postponed. Re-adjournment of the dispute may take place only for valid reasons. The absence of one of the parties without valid reasons during the re-examination of the land dispute does not stop its consideration and decision-making.
The order of its implementation is determined in the decision of the local self-government body, it is transmitted to the parties within three days from the day of its adoption and becomes effective from the moment of its adoption. Implementation of the decision on land disputes is carried out by the body that adopted this decision. At the same time, execution of the decision does not release the violator from compensation for damages or losses of forestry production as a result of violation of land legislation. You should also be aware that the execution of the decision on land disputes can be suspended or its term can be extended by the court. Moreover, only the court resolves land disputes regarding the ownership, use and disposal of land plots owned by citizens and legal entities, and as well as disputes regarding the delimitation of the territories of villages, towns, cities, districts and regions.
Local self-government bodies resolve land disputes within the territory of territorial communities regarding the boundaries of land plots owned and used by citizens, restrictions on the use of land and land easements, compliance by citizens with the rules of good neighborliness, as well as disputes regarding the delimitation of district boundaries in cities. If land owners or land users disagree with the decision of the local self-government body, the dispute shall be resolved in court.
It should be noted that the decision of the local self-government body cannot be enforced by force. And therefore, in case of refusal to implement the decision to demolish the fence, it can be demolished only by a court decision. However, we recommend that before turning to the court, you should contact the local self-government bodies and try to resolve the issue at this stage. Sometimes it works, unfortunately not as often as we would like.
As for the judicial proceedings, some controversial issues can be resolved only in the judicial process, because the court has such a tool as conducting forensic examinations on issues that require special knowledge. So, in connection with the height of the fence, the density of the material from which it is made, as well as in connection with the erected neighbor’s residential building or outbuilding, sometimes there is a question about insolation – the degree of illumination of the room, which is determined in the calculation for one day. Sometimes it is the construction and technical examination that decides whether the fence violates someone’s rights or not.
In addition, the court may make decisions that the local self-government body does not have the right to make, for example:
- recognition of ownership of a land plot;
- recovery from the other party in favor of the injured party;
- cancellation of the ownership right to the land plot.
In general, we advise you to maintain good relations with your neighbors whenever possible, because if it is necessary to draw up some kind of act, including for the court, to find witnesses for the court and the police, to supervise the household in case of absence for a certain time at home – the neighbors are your first assistants, a source of information and reliable cover.
