Neighbour law, construction site and immissions: noise, dust and vibration

Immissions are forms of interference that spread from one plot of land to another. With a building site these are above all noise, dust, vibration and odour. In the law of neighbours the ABGB regulates how far an owner may send such interference from their land onto the neighbouring property and where the limit lies.

The core is section 364 para. 2 ABGB. Under it the neighbour can have interference enjoined where two requirements are met together: the interference must exceed the level customary according to local conditions and it must substantially impair the customary use of the property. If one of the two requirements is missing, there is no claim to an injunction.

What is locally customary is the decisive yardstick. It depends on the zoning and actual use of the surroundings. A different standard applies in a quiet residential area than in a mixed-use area with commerce. What is customary can only be judged in comparison with the specific surroundings.

A building site by its nature brings noise and dust. Temporary interference that belongs to the usual course of building activity has to be tolerated to a certain extent. The law requires a certain degree of tolerance from neighbours, as long as the burden stays within what is locally customary and is limited in time.

The limit is reached, however, where the interference goes beyond the customary level or causes damage. Persistent noise well outside the permissible hours, massive dust without protective measures or vibrations that cause cracks in the neighbouring house do not simply have to be tolerated. A claim may exist here.

Whether interference is still typical of a building site, and therefore to be tolerated, or exceeds the permissible level, is a question of the individual case. It depends on duration, intensity, time of day and the protective measures taken. Accurate documentation is therefore the basis of every legal assessment.

An important exception applies where the interference comes from an officially authorised installation. Under section 364a ABGB the neighbour cannot then have the interference enjoined. In place of the claim to an injunction comes a compensation claim in money, which is intended to make good the disadvantage suffered.

This compensation claim is independent of fault. The neighbour therefore does not need to prove any misconduct on the part of the operator. It is enough that the authorised installation causes interference that goes beyond the reasonable level and brings about a disadvantage. In this way the legislature takes away the neighbour’s defence but gives a financial counterbalance.

In practice it is often disputed whether an installation is authorised in the sense that matters here and what amount of compensation is due. The distinction between an injunction under section 364 para. 2 ABGB and monetary compensation under section 364a ABGB is therefore often the first point that a legal assessment clarifies.

Besides immissions, the law of neighbours also covers physical intrusions around the building site. Section 364b ABGB protects against withdrawal of the support of the neighbouring land. Where the building plot is dug or deepened so far that the neighbouring land is deprived of its necessary support, this may only be done with precautions that prevent damage.

Where the builder intrudes directly onto your land without authorisation, for example by storing material, driving over or excavating, there is a disturbance of possession. The possession action under secs. 339 et seq. ABGB protects against this. It does not examine ownership but swiftly restores the last peaceful state of possession.

With disturbance of possession the short deadline matters: the action must be brought within 30 days of becoming aware of the disturbance and the disturber. Whoever waits too long loses this swift route. How to secure the condition for later proceedings is explored in our article on preserving evidence before construction litigation.

Document the interference comprehensively: a log of noise times, photographs of dust and cracks, where possible measurement readings and the names of witnesses. Record at which times of day and for how long the burden occurs. These records form the basis for every legal assessment.

First seek a conversation with the builder or the building owner and put your complaint in writing. Often protective measures or working hours can be adjusted by agreement. If that proves unsuccessful, examine whether an injunction, monetary compensation or a possession action is the right path.

If the other side does not respond or if damage occurs, early legal advice is sensible. A legal assessment quickly clarifies which of the routes under neighbour law works in your case and how to enforce your claims. An overview is provided on our focus page on construction damages and liability.