CONFLICT Or COOPERATION: RIGHT TO PEACEFULLY ENJOY THE PROPERTY
Introduction
India is the country with the world’s largest population. As the population is growing, it would definitely lead to increase in the domestic construction work. In India people majorly live in nuclear families. Many couples have to shift to different cities because of their jobs and they have to rent or buy new houses for living and this leads to construction work or repairing work. Imagine that one morning you have just woken up and tried to start your day. You suddenly noticed that there are cracks on the walls of your house. In your washroom almost whole ceiling is leaking. All of this happened because of your neighbor’s construction work. You are aware that you have the right to peacefully enjoy your property but being new in the society you are not able to communicate your problem with your neighbor. Initially taking every matter to the court is not the ultimate solution. Conflicts can even get resolved legally without going to court. It is important to know the legal remedies available to protect your property from any damage. These types of cases can be settled through the informal communication as well as it can end up to the court. Litigation is an expensive as well as time consuming process which can also turn up into the ruining of the relationships. Mediation is the better option if informal talks do not work and legal notices and complaints to the municipal cooperation turns out in nothing. Mediation is the process which can settle the issue with more quickly and it will be very less expensive. A neutral mediator will help both the parties to resolve the issue within a reasonable time and settle the compensation for the loss of the complainant.
Process for settling the issue
Evidence is the most integral part of any legal notice. Without any evidence there is little relevance of any legal notice. Initially you have to collect all the clear photographs and videos of all the cracks and leakage and condition of property before and after the construction work. Contact the structural engineer to prepare a report of the damage caused by the construction work of your neighbor and can be used further to claim the damages in mediation, negotiation or court proceedings. Proper documentation of each and every photograph, video and structural engineer report is crucial to prove the damages caused. Construction related damages may occur due to several reasons. Modern construction work involves excavation which can disturb the soil conditions, the operation of bulldozers can create vibrations which may weaken the existing structure. Construction work may also damage natural drainage patterns which can cause water seepage into neighboring building.
Property owners have the rights to peacefully enjoying their property without any interference from the outside. There should not be any physical damage caused to the property by anyone. In case of damage, the owner has the right to claim compensation. Claim of the damages can start with informal talk and may lead to civil suit.
Construction related issues can also disturb the mental well being of the people, especially when the disturbance is prolonged and caused damage to one’s property. Constant vibrations and noise due to the construction work can create the anxiety for the further damage of the property. Continuous noise can disturb the sleeping pattern, leading to difficulty in concentration in the work. Discovering the cracks in the walls can lead to emotional distress and feeling of helplessness and anger. Ongoing disputes can strain relationships within the family and with neighbors, creating a hostile living environment. If the matter goes long and ended up in court the complainant should also have the right to claim compensation for mental suffering which have caused due to the construction work.
Proving of the mental burden is very difficult. Judiciary should analyzes that on their own with the help of the facts if the complainant has applied for the compensation for the disturbance with the mental being because of their neighbor. In the cases where the neighbor was evidently negligent than that negligent can make an impact on the mental wellbeing of the homeowner, then the compensation should be granted without any appeal. Mental wellbeing though the very subjective matter but also very crucial in day today life. This provision should be added in construction related matter where the case went to the matter of litigation. As litigation is the very complicated as well as time taking procedure. It can drain a person financially as well as mentally.
The tort of Negligence applied in the cases where the neighbor while constructing his own house [1]is in breach of duty which leads to negligence. A person while executing his work which may harm the property of another person owns a duty of care towards another person. Therefore, it may not result in harming the movable or immovable property of another person. There are essentials of duty of care which needs to be fulfill. The defendant should reasonably foresee that their actions or omissions could cause harm to another person. A builder should foresee that careless excavation near a neighboring house may cause structural damage. There must be a sufficiently close relationship between the parties, whether physical, legal, or circumstantial. Neighbors whose properties share a boundary have a close and direct relationship. The court must determine whether it is fair, just, and reasonable to impose a legal duty on the defendant in the circumstances. It is fair to require a property owner to take reasonable precautions during construction to prevent damage to adjoining properties. When the duty of care is breached it leads to negligence. Negligent act leads to private nuisance, when the use of one’s property leads unreasonably interferes with the peaceful enjoyment of another person. Factors related to nuisance are as excessive vibrations, structural damage, dust pollution, noise disturbances and water intrusion. It can damage the walls as well as the soil of the adjacent neighbor house.
Person while executing the construction work is having the duty of care towards his neighbor and must take reasonable precautions to prevent any foreseeable harm. He must also comply with the municipal building codes and safety regulations as given under Article 243W and Twelfth Schedule of the Indian Constitution. Adequate safety measures should be taken to prevent the risks for adjoining structures.
A person can start with the informal talk with his neighbor for solving the matter between and get the compensation for whatever damages the have been caused. By showing all the photographs and videos and the report of structural engineer. Many a times most of disputes get solved by communication and cooperation. Maintaining polite and professional communication can facilitate settlement and preserve neighborhood relations. This takes less time and also save the money of the complainant for consulting an advocate.
If informal talk does not show any results than sending a formal legal notice through an advocate would be the next step. Legal notice should contain the description of damaged suffered by the property of homeowner by the construction of his neighbor. Demand to stop the further construction work which is causing damage to the property and also seek repair costs and compensation within a specified time. Legal notice demonstrates the seriousness regarding the issue and it may alert the neighbor in case he is ignoring the issue.
Municipal corporations play an important role in regulating construction activities as given in [2]Article 243W and Twelfth Schedule of the Indian Constitution. The homeowner may file complain for violation of building regulations, unsafe construction practices and structural risks of neighboring properties. After receiving the complaints municipal cooperation will conduct the inspections, send notices, order corrective measures and suspend construction activities.
Power given to municipal cooperation under Article 243W and Twelfth Schedule of the Indian Constitution should be increased. One provision should be added which give power to municipal cooperation to dispose off these matters own their own. So, the parties should not have to go to the court to file the civil suit, that also increases the burden of the judiciary and consume the time of both the parties. Municipal cooperation of every city should have the power to settle all the construction related issues and provide the compensation to the aggrieved party. The concept of consumer court is very well defined in India. Just like the consumer court where matters disposed off very quickly and only filing of consumer complaints take place. This kind of provision should also add within the power of municipal cooperation. So that matter can be disposed off quickly and no party get drained off with the procedure and less the burden of civil courts in India.
Municipal corporations should also strict the rules of construction work. So, prevention take place initially and there will be no need for the cure of the problem. Strict rules should be established. So that before starting any construction work, constructor will keep in mind the rules and these kinds of disputes will not arise. The rules should be backed by strict punishment. In case the rules are breached by the constructor they have to fulfill the strict penalty and it can be used as the lesson for others.
The last resort remains when nothing works is filing of the civil suit in the court for demanding the compensation to halt the construction work. There are many case where instant legal remedy is required otherwise there will be no relevance of that remedy in future. For this temporary injunction are provided under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (CPC). They are emergency legal remedy that protects person’s rights while the court is deciding the case. If court does not halt the construction work through the temporary injunction, it may further damage the property of the homeowner until the court grants its decision. In the case of Wander Ltd. v. Antox India P. Ltd. (1990) [3]Supreme court provided the Interim relief is the discretionary power of the higher authority. There are three main components which are required for the temporary injunction. The case should be prima facie, the applicant must prove that the case is worth to argue, it must be proven that while refusing the injunction will harm the plaintiff more than defendant and the violated right cannot be adequately fixed by the monetary relief later as seen in the case of Kashinath Sansthan v. Srimad Sudhindra Thirtha Swamy[4] (2010). Duration of temporary injunction depends from case to case. It may remain in force until a specified date, until further order of the court or until the final disposal of the suit. The court process generally involves filing of a plaint, then the notice served to the opposite party after that submission of written statements with the presentation of evidence. After completion of the evidence, examination of witnesses take place. Expert testimony and the final arguments and the wait of judgement. Proceedings may take several months depending on the dispute. Opting for the process of litigation can take several months and the process can be exhausting. Many people leave it in between because they can not tolerate it more. Expenses of travelling to court, hiring an advocate can also be burdensome for both the parties. Relevant advice for the construction related issues dispute is always settlement out of court. Burden of proof is always lie upon the applicant. They have to prove whether there was the existence of damage, the connection between the construction activity and damage. Ultimately maintaining strong documentary and expert report is crucial for the applicant to prove in the court and can claim the losses whichever is incurred due to negligence of the neighbor.
Litigation can be costly and time consuming. Therefore, parties may choose the option of alternative dispute resolution. Mediation is the process in which a neutral mediator facilitates discussion and assist parties in reaching a mutually acceptable solution. Arbitration is an another process, in which parties may agree to submit their disputes to an arbitrator whose decision is generally binding. There are several benefits of the alternate dispute resolution as it offers faster resolution, it saves the time of both the parties. Lower the cost with greater flexibility. Parties may not feel exhausting during the process and most of the cases in mediation dispose speedy. As the process of court is expensive as well as exhausting, it may ruin the relationship of both the parties for the entire future and having bad relationship with the neighbor may feel negative. Alternate dispute resolution is a very reliable solution for these kinds of civil disputes to preserve relationship for the long run.
Conclusion
As the population grows and the development takes place it is natural that construction activities will also take place. Due to rising of urban development and construction activities locally, it may lead to disputes between the adjacent neighbors. If those activities disturb the peaceful enjoyment of the homeowners in the form of cracked walls, leaked ceiling and disturbance in soil. They have legal remedies in their hands to claim the compensation and whatever the damages which have been caused. The law imposes duties upon property owners, contractors, and developers to ensure that construction activities do not unreasonably interfere with neighboring properties. It is on to the complainant to collect the clear photographs and videos to prove their position regarding the issue and consult a structural engineer for the report to make their case powerful. Litigation is the long process to resolve the issues. Initially settlements between the neighbors should always the first preference and litigation is the last resort. When informal talks fail, legal notices, complaints to municipal authority and mediation provide the solution. Municipal corporations should be given more power to hear the matters related to construction. The provision can be resembles with the provision of consumer courts. It can save the time of both the parties as well as civil court. Municipal cooperation should also make the strict rules with the strict penalty. So that there will no space left for complain. Injunctions can be provided if court finds it well to grant because this is on the discretionary power of the court. Compensation for the drainage of mental being should also be provided on the discretion of the court based on the facts as well as ask of the complainant.
Therefore, the ultimate solution can only be granted when the actions take place on time with proper evidence, professional guidance, and clear understanding of legal rights and obligation. Following the conditions and remedies available by the law, homeowners can protect their property, recover their loss and ensure accountability for negligent construction practices.
[1] https://primelegal.in/property-damage-law-in-india-what-happens-if-someone-damages-your-property/
[2] https://lawrato.com/civil-legal-advice/what-is-the-legal-aid-for-damage-to-property-by-a-neighbour-245561
[3] Wander Ltd. v. Antox India (P) Ltd., 1990 Supp SCC 727
[4]Kashinath Sansthan v. Srimad Sudhindra Thirtha Swamy
Role of Mediation under Section 12A of the Commercial Courts Act, 4.1 JCLJ (2023) 413
