The Brazilian Civil Code has a specific chapter dealing with neighborhood rights, which limit the abusive use of property in order to avoid conflicts between its owners or possessors.
Ultimately, it is a fundamental characteristic of Law to prioritize sets of norms over human relations in order to avoid the state of nature (HOBBES, 1651), in which positivism is the conventional guideline, invented by men, with a view to the common good, order and the preservation of life.
Here, we will discuss concepts of neighborhood law, key practical cases, and what has been the best, most efficient way to resolve these problems.
What is the purpose of neighborhood law?
In principle, the rules established by neighborhood law aim to regulate the legal relationship that already exists between those who hold real rights.
Among these rules, provisions arise regarding simple facts that trigger conflicts between neighbors, such as:
- Boundary trees;
- forced passage;
- cable and pipe routing;
- waters;
- boundaries between buildings;
- right to fence;
- and the right to build.
Indeed, neighborhood law acts as a limit to the right to property , which should not be seen as an absolute right.
Regarding the right to property, which is quite influential in this discussion, the distinguished scholar Carlos Roberto Gonçalves teaches that:
" The right to property, despite being the broadest of the subjective rights granted to man in the patrimonial field, suffers numerous restrictions on its exercise, imposed not only in the collective interest, but also in the individual interest. Among the latter, those determined by neighborly relations stand out ."
Therefore, property should be used in a way that allows for peaceful coexistence among those who share the same geographic space, whether in houses or in condominium buildings.
What are the legal rights protected by Neighborhood Law?
When reading the articles dealing with neighborhood rights in the Civil Code , three main protected legal interests can be identified: safety, peace and quiet, and health.
In other words , according to article 1.277 of the Civil Code :
" The owner or possessor of a building has the right to stop harmful interferences to the safety, peace, and health of its inhabitants, caused by the use of neighboring property ."
In summary, article 1.277 of the Civil Code is clear in defining the legal assets protected by neighborhood law.
What criteria can be used in neighborhood law?
In cases involving actions that interfere with the health, peace, and safety of the neighborhood, two further criteria can be analyzed to support the legal defense: the conflict zone and the prior possession.
Conflict zone
This criterion serves to verify the normality of the use of the property, analyzing the customs of the place where it is located.
This is because local customs vary considerably. For example, the customs of a residential neighborhood are completely different from the customs of an industrial neighborhood.
Therefore, what may be considered abnormal use of property in one location may not be in another.
Prior possession
In addition to the conflict zone, the prior possession must be considered , since the person who bought or rented a property near a noisy establishment should, in theory, already be aware of the customs of that place.
This criterion generally implies that those who settle in a particular location first determine its purpose.
However, this theory is not absolute , since property owners cannot use prior possession to justify disturbing their neighbors.
What are the main practical cases in Neighboring Law?
First, one of the biggest problems in Real Estate Law is the issue of noise or disturbance that disrupts the peace.
Another issue is the construction work that causes damage to neighbors or even risks to safety and health . Let's look at each of them.
Practical examples of noise or sound
This problem occurs mainly in relation to commercial establishments such as bars.
It is extremely common for these businesses to be responsible for producing noise levels exceeding local legal limits, lasting late into the night, disturbing the peace and consequently disrupting peaceful coexistence between neighbors.
In these cases, as a lawyer, you should advise that the bar can be notified and, if the noise is not stopped, that a lawsuit can be filed for that purpose.
Practical examples of construction projects
In cases of construction work that could cause damage to neighbors or even pose a risk of collapse (especially considering that most home construction projects do not have an architect or engineer responsible for safety).
In such cases, as a lawyer, it is also necessary to advise on the plausibility of filing a lawsuit seeking liability.
However, professionals should try to mediate conflicts and offer clients the quickest resolution, which is usually out of court – either through notification or an attempt at early reconciliation.
Conclusion
In short, Neighboring Rights exist to curb violations of security, tranquility, and health , promoting peace among those who cohabit as neighbors.
Therefore, as already mentioned, the right to property is not absolute . Thus, illegal, abusive, and harmful acts that directly affect legal rights protected by Neighboring Rights can give rise to liability.
However, it is essential to try to mediate conflicts and offer clients the quickest resolution possible, which is usually out of court.
Therefore, the client solves the problem more efficiently , and their professional performance is highlighted.