Rights for Extensions and Gutters - Free Advice

Questioner

Hello, We live in a semi-detached house. Our neighbours have a utility room at the rear of their original house (1960) with a gutter that overhangs our land. Now we would prefer to build against that existing wall, but they do not want the gutter removed, because this would reduce the value of their home. If we now place the new wall flush against the gutter, so that we lose as little space as possible when adding on... is that allowed? What are our further rights in this regard?

Lawyer

Yes and no. Assuming that the land you want to build on is your property, you can do with it what you want. However, you must take into account the rights of others. For example, the gutter must remain accessible for maintenance and repair. I can understand that the neighbors don't want the gutter removed just like that. I don't know much about construction, but perhaps there is a possibility to relocate it so that both your interests are served?

Questioner

Hello Marc, Unfortunately, our neighbours are not open to relocating the gutters; they want to maintain the original condition at all costs. The land we want to build on is indeed our land. How much space should be left between the gutter and the new wall according to the law? Or is there no standard for this?

Lawyer

The rule is that at least 1 meter of distance must be kept between buildings, unless the buildings are built against each other. Since the gutter has been hanging above your property since 1960, the right to remove the gutter has probably expired. This means that an easement has been created, which gives the neighbors the right to maintain the gutter. Consequently, you must take the presence of the gutter into account, and create a situation during the renovation that does justice to the interests of the neighbours in a properly functioning gutter. However, not at all costs. If you want to build the extension against that of the neighbours, and you can find a good alternative solution for the gutter, you can demand a change of the easement that has arisen. The neighbours must have a good reason not to agree to a good alternative for the gutter, if you have a great interest in realising the extension against that of the neighbours.

Lawyer

Apologies, I missed your follow-up question. However, Mr Van Binsbergen has already provided you with an excellent answer. His last sentence is particularly important. You have to take your neighbours into account, but of course the same applies the other way around!

Questioner

In the meantime, we have a very good alternative from our contractor for the overhanging gutter. This is even invisible but still requires the removal of the gutter. What is the legal procedure now? Do we submit the plan to the municipality and will it then ultimately decide whether the gutter has to go or not?

Lawyer

The municipality assesses the zoning plan. If the zoning plan permits the extension, the municipality cannot and may not take the gutter into account. This is different if a deviation from the zoning plan is necessary. The municipality will then have to take the rights of the neighbours into account in the assessment. In addition, if there is a discussion about whether rights have been acquired by prescription, the judge who decides on the permit may not simply assume these rights. In practice, a dispute about the gutter will almost always involve the civil court. This court will ultimately determine the fate of the gutter.