What should I do if my neighbor erects an illegal building in the hallway?

The owner of immovable property rights shall provide necessary facilitation for the use of water, drainage and passage by adjacent rights holders, and the construction of buildings shall not violate the relevant national construction standards and obstruct the ventilation, lighting and sunshine of adjacent buildings. According to the laws of the People's Republic of China, the owner of adjacent rights to immovable property shall correctly handle the adjacent relationship in accordance with the principles of conducive production, convenient life, solidarity and mutual assistance, fairness and reasonableness, and shall stop the infringement, remove the obstruction and compensate for the losses if it causes obstruction or loss to the adjacent party.

1

Basic facts of the case

Xia was the lessee of Room 316 of the building involved in the case, and his exclusive leased part was Room 316, and the common leased part was the northwest bathroom on the third floor. Song is the lessee of Room 216B of the building involved in the case, and his exclusive leased part is Room 216B, and the common leased part is the bathroom on the second floor. Around 2011, Song built a bathroom against the wall in the corridor on the second floor of his rented house, with toilets, shower equipment, water heaters, water inlet and sewage pipes. On June 16, 2021, the property management department of the building issued a notice of rectification of illegal buildings, stating: "Song, the tenant of Room 216B, after investigation, you have committed the following behaviors in the process of property use/decoration: illegally building a shower room in the public walkway on the second floor without authorization. The above-mentioned acts have violated the relevant regulations on property management, and in accordance with the provisions of Article 56 of the Regulations on the Management of Residential Properties in Shanghai, you are requested to immediately stop the above-mentioned violations and immediately rectify them." Because the stairwell space of the corridor is open, and the floors are not completely separated from each other, it is impossible to form a relatively closed space, therefore, the exhaust gas generated by bathing is very easy to disperse on the second floor and float to the third floor, so Xia filed a lawsuit with the court of first instance on the grounds that Song had infringed on his adjacent rights and interests, requesting that Song be ordered to dismantle the relevant facilities he had built in the building in question.

2

Heard by the courts

After trial, the court of first instance held that, according to Song's lease certificate, Song could use the bathroom on the second floor, which could meet his daily basic living needs, but in order to facilitate his daily life, Song built a toilet with a toilet and shower equipment in the public corridor on the second floor, supporting a water heater, water inlet and sewage pipes. The house involved in the case was old, and Song used a water heater there, and the exhaust gas of the water heater was discharged in the corridor, even if there were windows in the corridor, there were serious safety hazards. Therefore, Xia's request for Song to dismantle the building was upheld by the court of first instance. Song was dissatisfied with the first-instance judgment and appealed.

In the second instance, Song asserted that he had modified the gas exhaust pipe in accordance with the judgment of the court of first instance and no longer infringed on Xia's neighboring rights and interests.

After trial, the court of second instance held that although Song had modified the gas exhaust pipe, the fact that Xia claimed that the infringement of the rights and interests of the adjacent party was not limited to the issue of exhaust gas discharge from the gas pipe, and that Song's mere modification of the gas pipe was not sufficient to exempt him from tort liability. And according to the ascertained facts of the case, Song's unauthorized construction of a shower room in violation of regulations on the second floor of the public walkway has been determined to be a violation of residential property management regulations, and if the shower room and ancillary facilities are not removed, the violation still objectively exists. Song asserted that because the public toilet facilities in the building involved in the case could not be used normally, he had to build the toilet by himself, and that the demolition of the toilet involved in the case would bring inconvenience to Song's life, and that there were widespread illegal construction behaviors in the building. In this regard, the court of second instance held that whether the public toilet in the building involved in the case could be used normally was a matter of property management services, and the property management department in this case did not recognize Song's illegal construction, and even if the building involved in the case had the circumstances described by Song, it was not a statutory cause to prevent Song from constituting tort liability for Xia's adjacent rights and interests. Accordingly, the appeal was dismissed and the original judgment was affirmed.

3

Rule of Law Recommendations

The adjacency relationship refers to the relationship of rights and obligations arising from the mutual facilitation and acceptance of restrictions formed by the rights holders of two or more immovable properties adjacent to each other in the areas of ventilation, lighting, water use, drainage, and passage when exercising their immovable property rights. The purpose of the law is to coordinate the conflict of rights between adjacent immovable properties, balance the interests of the owners or users of adjacent immovable properties, prevent the indefinite expansion of rights and cause damage to the rights and interests of others, and then promote the effective use of land and buildings. In social life, the owner of real estate rights shall provide necessary facilities for the ventilation, passage, lighting, water use and drainage of adjacent rights holders, and the construction of buildings shall not violate the relevant national engineering construction standards, and shall not obstruct the rights of ventilation, lighting and sunshine of adjacent buildings. If any obstruction or loss is caused to the owner of adjacent immovable property rights, the infringement shall be stopped, the obstruction shall be removed, and the losses shall be compensated in accordance with the provisions of law.

Adjacent access and ventilation are the most common kind of adjacent relationships, and when dealing with such adjacent relationships, they should be handled correctly in accordance with the principles of conducive production, convenient life, solidarity and mutual assistance, fairness and reasonableness as stipulated in the Civil Code. This is also the basic principle for dealing with conflicts of rights between owners of adjacent immovable property. The erection of illegal buildings in the corridor may adversely affect the rights of adjacent rights holders, such as access and ventilation, and affect the normal life of adjacent rights holders. If the illegal building is not scientifically and reasonably designed by a professional organization, the quality of the building cannot be guaranteed, and there may be serious safety hazards. In addition, due to the inherent public interest nature of corridors and stairwells, illegal construction in corridors and stairwells may also block fire emergency passages and affect public safety.

In this regard, the following suggestions are made:

● The owner of the immovable property shall enhance the awareness of the right to the right, and the owner or user shall not block the necessary passage within the scope of the building owned or used by one party. For illegal construction, the owner of the adjacent immovable property rights who has been infringed may file a complaint with the relevant administrative department or file a lawsuit with the people's court.

● Property service enterprises shall strengthen the management of property management areas, and promptly discourage and stop the construction of illegal buildings in public areas such as stairwells and corridors, and report to the relevant administrative departments in a timely manner.

4

Relevant Laws

Civil Code of the People's Republic of China

Article 288:Owners of adjacent rights to immovable property shall correctly handle adjacent relationships in accordance with the principles of conducive to production, convenience of life, solidarity and mutual assistance, and fairness and reasonableness.

Article 293: The construction of buildings shall not violate the relevant national construction standards, and shall not obstruct the ventilation, lighting and sunlight of adjacent buildings.

Article 1167:Where the tortious conduct endangers the safety of others' persons or property, the infringed party has the right to request that the infringer bear tortious liability such as stopping the infringement, removing obstacles, or eliminating dangers.