Article 3.62 of the Civil Code regulates the fate of works made ". partly on, over or under the neighbour's land "by introducing the general rule of a right to demand their removalThis is the case if the encroachment is based on a legal or contractual title, specifying that acquisitive prescription during a legal period allows for the acquisition of a legal title in accordance with Article 3.27 of the Civil Code (now 10 years, except in cases of bad faith where it is 30 years).

In case of the existence of such Legal or conventional titleThe encroaching works remain the exclusive property of the builder, according to a "horizontal" right of accession whose duration is limited to the title invoked.

In the absence of title and if the owner is of good faithIf the encroaching builder suffers "disproportionate" damage, removal will not be permitted. The encroached neighbour will then have the choice of either granting a right to build for the duration of the building's existence or ceding the necessary part of the plot, in return for compensation on the basis of unjustified enrichment in both cases.

A person who has a title that is not enforceable against his neighbour (for example, an untranscribed precarious occupation agreement concluded with a previous owner) or where the boundary of the land is uncertain or erroneous at the time the work is carried out, will be encroached upon "in good faith".

If the encroacher is from bad faiththe neighbour may demand the removal of the encroaching inherent component unless there is neither considerable influencenor potential harm in the neighbour's favour. If he does not request removal, the neighbour will have the above-mentioned choice between temporary building rights or transfer of ownership.

The extent of the right of way and the existence of a "potential" prejudice will be subject to the appreciation of the judge of the merits in case of litigation.

It is therefore forbidden to install insulation on one's private wall if this insulation encroaches on the neighbour's property and if the neighbour has not given his prior express consent (it should be remembered that these rules are suppletive and that the parties are free to depart from them contractually).

The existence of a planning permission authorising the execution of the works does not in any way require the neighbour to suffer the encroachment, as planning permissions are always granted subject to civil rights, particularly those of third parties.

Taking into account the thickness of insulation that is currently used to achieve the best energy performance, it is difficult to anticipate what will be considered a "considerable" encroachment. An encroachment of 20 cm of insulation and finishing plaster or cladding on a 15 metre long wall will take up 3 m².

Still, a "non-massive" encroachment that causes "potential" harm justifies removal.

The first potential damage that can be thought of is the impossibility for the encroached neighbour to build on his own land. This "potential" damage will therefore be taken into consideration, even if the construction projects are not concretely envisaged.

It would have been more appropriate to provide in this case that the building right is limited not to the duration of the building's existence, but to the day when the potential damage becomes concrete.

This is all the more regrettable as the neighbour who encroaches by installing insulation may no longer have any interest in or use for it when a heated and covered building is built in place of the insulation and finishing.

The drafters and authors of the proposed law inserting Book 3 "Property" into the new Civil Code were specifically questioned during the preparatory work on the subject of "property". situations where an encroachment for technical and/or administrative reasons cannot be avoided, e.g. an encroachment due to the (legally required) insulation of the external facade of a house ".

Professor SAGAERT's response was " that it is not appropriate to expressly include this in the law. The range of possible situations is too wide for this and, moreover, there are situations of encroachment which do not block the riparian owners. It does not therefore seem possible to solve the problem described by Mr Crombez in abstracto. He stressed that the theory of abuse of rights should be applied in such situations ".

The author of the bill insists ". that where there are government regulations making insulation compulsory, or even where the encroachment is motivated by ecological or sustainability considerations, the public interest aspect must also always be taken into account in the assessment of the situation. "

(Parl. Doc. House, ses. Order 2018-2019, No. 55-0173/004, p. 30 - https://www.dekamer.be/FLWB/PDF/55/0173/55K0173004.pdf )

In addition to the fact that it will therefore be up to the judge to take into account a possible abuse of right and the general interestIn the case of climate change, it should be remembered that encroachment is specifically authorised when it is justified by the construction of a common wall allowing the support of a second construction, according to article 3.106 of the Civil Code.

There is therefore a right to encroach on one's neighbour's property by laying bricks or concrete to ensure the stability of structures that may never be built, but not by laying insulation and removable finishes.

It is therefore regrettable that the Civil Code does not regulate the question of the free-standing wall, with the installation of insulation and finishes "in waiting" for an adjacent construction.

It is hoped that contentious situations will be decided taking into account this difference in circumstances, which should make it possible to justify situations in which abduction would be "abusive".

Frédéric VAN BEVER