Explanation of Article 613
The article establishes a general principle in neighborly rights, whereby it imposes obligations on a neighbor towards their neighbor, preventing them from excessive use of their property. The criterion for excessiveness that the owner is prohibited from is any act that results in unusual harm. If the owner's use of their property does not result in unusual harm, the excessiveness required by the article to restrict the right of ownership is not realized.
Nevertheless, the kindness towards neighbors, as encouraged by the texts of Islamic law, necessitates that a neighbor should strive to avoid any harm to their neighbor, even if it is usual.
The second paragraph indicates that neighborhood imposes on adjacent owners the need to tolerate a certain amount of usual harm, which must be tolerated; otherwise, it would be difficult for owners to exercise their rights. The sounds emitted by a neighbor and the smell of cooking reaching a neighbor can be described as harms, but many of them do not exceed the usual, so the neighbor is not prevented from them, nor is there any liability on them.
This is a fundamental difference between the responsibility of a neighbor and the responsibility dictated by general rules. The rules dictate compensation for harm regardless of its extent, but in neighborhood nuisances, responsibility only arises if the harm exceeds the usual limit among neighbors, despite the presence of the element of fault, which is excessive use. However, this excessiveness is only considered in light of the extent of the harm, and thus the criterion for excessiveness is the occurrence of unusual harm.
The assessment of the extent of harm, whether usual or unusual, is at the discretion of the court, which considers four factors mentioned in the second paragraph:
The first consideration: Custom, what is customary among neighbors to tolerate from each other is not considered unusual harm, and this varies with the development of societal conditions. Some harms are considered usual in villages and rural areas but not in cities.
The second consideration: The nature of the properties, if the property is a hotel, the neighbor tolerates more from their neighbor than neighbors in quiet private residences. If the property is a factory with operating machinery and crowded with workers, its owner tolerates more from their neighbor than others.
The third consideration: The location of each property relative to the other, the owner of the lower floor tolerates more harm from disturbing noises than the owner of the upper floor, and the property adjacent to a factory tolerates more harm than one further away.
The fourth consideration: The purpose for which the property is designated, a property designated for quiet residence is different from one designated for purposes with increased human activity and noise.
The criterion in these four considerations is an objective one, not taking into account the specific circumstances of the neighbor who suffered the harm.
These four criteria are not exhaustive, as the court may rely on other criteria such as the precedence of one property over another and its impact on assessing the harm.
The article concludes by emphasizing that the license to establish a property or conduct an activity issued by the competent authorities does not prevent harm from being unusual; thus, the neighbor has the right to demand the removal of the harm. This license is intended to ensure the availability of conditions required by the system to conduct the activity, and it has no bearing on the rights of others if they are harmed by this activity. For example, if a license is issued for a wedding hall where events are held, this license does not prevent the neighbor, if they suffer unusual harm according to the previous four considerations and others deemed by the court, from seeking recourse against the owner of this hall by demanding the removal of these nuisances. If the neighbor's responsibility for the unusual harm caused to their neighbor is established, they must compensate, either by removing the harm or by monetary compensation according to compensation rules.
Related To
Article 613
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The owner shall not exercise his right to the extent that causes harm to his neighbor’s property.
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A neighbor may not have the right of recourse against his neighbor for unavoidable inconveniences. A neighbor may, however, demand that such inconveniences be remedied if they exceed acceptable limits, subject to custom, the nature of the real property, the location of each property vis-avis the other, and the intended purpose of each property. A license issued by a government agency shall not preclude a neighbor from exercising his right to demand remedy for such inconveniences.