For properties located in Catalonia, this matter is regulated in fith book of the Civil Code of Catalonia, approved by Law 5/2006 of 10 May, in force since 1.7.2006.
The article 546-11 CCCat provides the regulation in the case of buildings in poor condition and dangerous trees, and establishes the right of the owners of the neighbouring property to demand that, the owners of the property causing the danger or threatening health and safety adopt the appropriate measures to put an end to the dangerous situation, or even to demolish the construction element causing the danger.
But we analyse in this article is the regulation of art. 545-3 CCCat, corresponding to restrictions in the private interest.
As is well known, the right to property is direct and absolute, but legislation establishes and regulates its limits.
Lately, we have come across many cases in which owners are unaware of the limits to their own rights, which can lead to them being sued by a neighbouring owner, who requests access to his property in order to carry out works on his own property, with compensation for the damages that this may cause.
This restriction can be judicially demanded and results from the regulation of neighbourly relations and in the private interest, also developed in case law.
The question that arises is whether there is a right to demand compensation, as a prerequisite to the occupation of the property, or as a consequence of it, and limited to the damages that exceed the nuisances inherent to the temporary use of the property.
If the nature of the right were an easement, it would be subject to the prerequisite of fair compensation for its compulsory or legal constitution, but as it is a legal limitation of the domain of the properties, due to good neighbourliness, the prerequisite of payment of an occupation fee or rental price does not apply.This is because, unlike easements, legal limitations due to neighbourliness are characterized by reciprocity, and from them derive the normal discomfort caused by the temporary occupation of the property, which must be tolerated without having to pay anything for it, due to the requirements of neighbourly coexistence.
All of this, without prejudice to the eventual and subsequent compensation that may correspond if due to its intensity, surface extension, duration, or due to the discomfort or disturbances generated, it exceeds the ordinary or normally tolerable in normal coexistence, or if damage has been caused, which evidently must be accredited as having been effectively produced, not being presumable or foreseeable.
The conclusion is that the obligation to consent to the passage through one’s own property cannot be made conditional on any guarantee, as this is not provided for in the legal regulation on the matter, and in the event of a legal action, no opposition on this ground would be successful.
If you would like to know more about this and your specific case, please do not hesitate to contact us.
