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Old 07.09.2020, 12:54
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encroachment by neighbour

Hello,

We have recently purchased a building land in Valais.

Once we took possession, we visited our land.

We saw that our adjoining neighbour is building an underground parking.

For this he has dug-up on our side from the border approx 1.5 - 2 meters (all along the length of our border).

Apparently, he needs space to work from our side.

But, no one asked for our permission or permission from prior owner and now he is cementing his basement structure and he has also cemented on our side (50 cm inside our land).

We have complained to the neighbour, the commune and contemplating legal action but it appears as a very costly process.

Our lawyer has written a warning letter but he has continued to build on our side.

I just want to know if anyone has experienced something similar or does Swiss law permit building on neighbour's land without consent?

Thank you.
San
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Old 07.09.2020, 15:19
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Re: encroachment by neighbour

Have you called the police to ask what you should do?
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Old 07.09.2020, 16:22
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Re: encroachment by neighbour

Can you be sure you know where the border is?
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Old 07.09.2020, 16:32
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Re: encroachment by neighbour

If your case is legit then that is cheeky of the neighbour! Once the issue is solved I would install a low fence.
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Old 07.09.2020, 16:46
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Re: encroachment by neighbour

It's illegal as it's probably violating the building license, have your lawyer try to block it asap so that they incur in additional costs due to the delay and are ready to negotiate. Once it's built it will be much harder to get compensation. If you don't care about underground garage sticking 50 cm in your land then whatever.
Why didn't the old owner demarcate the property?
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Old 07.09.2020, 18:37
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Re: encroachment by neighbour

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Can you be sure you know where the border is?
Yes, we had a geometer check everything and he is digging in our land. We don't know the reason as we never received any information or request for permission from anyone.

Thank you.
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Old 07.09.2020, 18:45
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Re: encroachment by neighbour

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It's illegal as it's probably violating the building license, have your lawyer try to block it asap so that they incur in additional costs due to the delay and are ready to negotiate. Once it's built it will be much harder to get compensation. If you don't care about underground garage sticking 50 cm in your land then whatever.
Why didn't the old owner demarcate the property?
Thank you!

Our lawyer had send a letter giving him 10 days to rectify but just visited the site (after 5 days) and he spraying cement on our dug up sides.

Yes, we are trying a quick action from our lawyer or trying if commune could intervene.

The whole project will take months to finish and he has just started activity on our land without saying/asking anything.

Since, we don't know what he is planning, we don't know his intentions.

No, we don't want to give an inch or anything - not like this!

The thing is that demarcations are clearly visible, but he just doesn't care.
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Old 07.09.2020, 18:53
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Re: encroachment by neighbour

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It's illegal as it's probably violating the building license, have your lawyer try to block it asap so that they incur in additional costs due to the delay and are ready to negotiate. Once it's built it will be much harder to get compensation. If you don't care about underground garage sticking 50 cm in your land then whatever.
Why didn't the old owner demarcate the property?
You need to get your lawyer to write to the building control and request the enforcement of an immediate stop notice of works.

I managed this for someone as the neighbours contractors/builders/architects did not do carry out correct temporary support of her building whilst digging 30 metres down for the underground parking and huge cracks plus subsidence appeared in my friends house; directly adjacent to the digging. It put the bums rush up those concerned and the building was magically sured up within 48 hours and everyone came around the negotiating table.

They did try the "well it was like that before" unfortunately for them I had taken pictures. As building control were present when I showed them, they were not impressed.... nor was I ...

An ongoing argument went on for about 2 years as to who was responsible and who's insurance was going to pay and how much.

Stupid arguments, like well the building was not new & hence they only want to pay a % ensued, nightmare but there was a good outcome... that is another story ...
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Old 07.09.2020, 18:56
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Re: encroachment by neighbour

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Thank you!

Our lawyer had send a letter giving him 10 days to rectify but just visited the site (after 5 days) and he spraying cement on our dug up sides.

Yes, we are trying a quick action from our lawyer or trying if commune could intervene.

The whole project will take months to finish and he has just started activity on our land without saying/asking anything.

Since, we don't know what he is planning, we don't know his intentions.

No, we don't want to give an inch or anything - not like this!

The thing is that demarcations are clearly visible, but he just doesn't care.
Get your lawyer to issue a "stop notice" see my post. There are severe consequences if your neighbour ignores this!!!

He is trying the forgiveness approach, harpoon them in the wallet!!!!
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Old 07.09.2020, 18:59
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Re: encroachment by neighbour

Not sure the correct legal decorum here, however I have and did use the following with lawyers in the past.

"I am instructing you to (whatever you need them to do) & time is the essence"

They did carry out my instructions but they did not like it!
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Old 07.09.2020, 19:23
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Re: encroachment by neighbour

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Not sure the correct legal decorum here, however I have and did use the following with lawyers in the past.

"I am instructing you to (whatever you need them to do) & time is the essence"

They did carry out my instructions but they did not like it!

Not sure it means what you think it does, and it's "of the essence".
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Old 07.09.2020, 19:32
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Re: encroachment by neighbour

If the communes building commission is not interested or does not act in good time instruct your lawyer to get ASAP a "mesures superprovisionnelle" according Art. 264 CPC against the building activities.

Furthermore you can instruct your neighbor and all involved builders that they are not allowed to step on your property (interdiction d'entrer), give them clear indication where your property starts, and make clear that any violation will be considered as illegal trespassing.

Take pictures and document everything.
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Old 07.09.2020, 19:36
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Re: encroachment by neighbour

This is another good example of why everyone living in CH needs legal insurance. The bills can mount very quickly in situations like this even if you are correct and in your rights. The CH legal system, communes, and cantons (VS is a good example), do not want to get involved unless you force them. To do so you need top notch legal help which is not cheap.

The best noted legal insurance (via the Swiss French consumer magazine) is https://www.dextra.ch/fr/ . In French the insurance is called "assurances protection juridique". Normally they have a car and/or person plan that you can buy separately but it is cheaper to buy them together.
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Old 07.09.2020, 19:39
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Re: encroachment by neighbour

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Not sure it means what you think it does, and it's "of the essence".
It means "time is critical" so do not sit on your hands and get it done now (immediately), otherwise you are held accountable & liable for not following instructions!
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Old 07.09.2020, 19:41
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Re: encroachment by neighbour

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If the communes building commission is not interested or does not act in good time instruct your lawyer to get ASAP a "mesures superprovisionnelle" according Art. 264 CPC against the building activities.

Furthermore you can instruct your neighbor and all involved builders that they are not allowed to step on your property (interdiction d'entrer), give them clear indication where your property starts, and make clear that any violation will be considered as illegal trespassing.

Take pictures and document everything.
I believe this is the equivalent to what I term a "stop notice" and check with your lawyer but if they break it, you can call the police on them (that was my understanding)
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Old 07.09.2020, 19:43
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Re: encroachment by neighbour

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The best noted legal insurance (via the Swiss French consumer magazine) is https://www.dextra.ch/fr/ . In French the insurance is called "assurances protection juridique". Normally they have a car and/or person plan that you can buy separately but it is cheaper to buy them together.
Thanks for that info. It is called "Rechtsschutz", right? I am with this company in German part of CH-
https://www.orion.ch/de
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Old 07.09.2020, 19:50
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Re: encroachment by neighbour

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I believe this is the equivalent to what I term a "stop notice" and check with your lawyer but if they break it, you can call the police on them (that was my understanding)
If the actual construction is against the building permit the building commission can also issue a "stop notice"/"mesures superprovisionnelle". I am not sure, but I think the building commission has to get it from the local district court as well.

Accordingly, there are two ways to get such a "stop notice". There are pros and cons for each of those ways.
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Old 07.09.2020, 22:38
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Re: encroachment by neighbour

I’m curious if the neighbor is doing the concrete and digging work himself. Or are the contracted companies that are also knowingly and willingly participating in a possibly illegal construction?

Who is in actually in charge of the building operation?
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Old 07.09.2020, 23:52
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Re: encroachment by neighbour

Have you requested a copy of the bulding permit from the commune?
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Old 08.09.2020, 20:40
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Re: encroachment by neighbour

Priority numer one is to have the building stopped from worsening ever more, you need to assume that what's built is built and will be given permission post-fact.

The quickest way is to forbid the builders entering or otherwise using your property, including spraying cement or whatever. Don't do that via company headquarters but on site, tomorrow at 6:30 AM, they'll probably arrive before work starts at 7 AM or whenever to prepare stuff. Issue that ban to the "Bauführer" as well as to those individuals who ignore it. Have at least one witness with you. If necessary call the police and have them enforce your ban.
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