Smelly neighbours: what legal remedies are available?

Smelly neighbours: what legal remedies are available?

"The ventilation from my neighbours' kitchen leads directly under my canopy, which is partly enclosed. That's where my front door and parking space are. On a daily basis, we have to put up with the smells and it's becoming really unpleasant. I'd like to know what the law allows me to do.

Thomas, Chêne-Bougeries

Unpleasant odours can put a strain on neighbourly relations when a solution to the problem cannot be found through dialogue.

If your neighbour owns his own home, you should be aware that he is obliged, in exercising his right, to refrain from any excesses to your detriment. Article 684 of the Civil Code stipulates that air pollution, unpleasant odours, noise, vibrations, radiation and the deprivation of light or sunlight that have a harmful effect and exceed the limits of tolerance that neighbours owe each other according to local custom, location and the nature of the buildings are prohibited. Anyone who is threatened with or suffers damage as a result of an owner exceeding his or her rights may apply to the courts to have the owner ordered to take measures to avert the danger, to restore the property to its original condition or to pay damages.

You can assert these rights not only if you are the owner of your flat or villa yourself, but also if you are only the holder of a restricted right in rem (usufructuary, superficiary) or the holder of a personal right (e.g. if you are a tenant).

That said, neighbours must still show tolerance and accept certain nuisances, the main question being whether or not the unpleasant odours you are complaining about exceed the tolerable limits. According to case law, objective criteria must be used to distinguish between immissions that must be tolerated and those that are excessive. The judge thus takes the point of view of a normal person and disregards the complaints of a hypersensitive person or the lack of reaction of an indolent person. He therefore has broad discretionary powers. By way of example, the Federal Court has deemed odour and noise in the vicinity of a pigsty or slaughterhouse in the middle of a village, or a rotisserie in a residential area, to be excessive emissions.

If the unpleasant cooking odours are only noticeable under cover, i.e. outside your home, it may be more difficult to prove that the nuisance exceeds the tolerable limit. The situation will be different if the odours are very strong, very frequent and also spread inside your home.

Finally, it should be noted that if your neighbour is not the owner of the premises, you can also take action against him or her, on the same principles, on the basis of the rules of the Civil Code that protect against disturbances of possession, in accordance with art. 928 CC.