23 April 2025
A property owner or occupier may, in certain circumstances, be required to temporarily allow another person to use their home or land if this is necessary for work to be carried out on the other party’s property.
This is often referred to as “scaffolding or ladder rights”. Since this is effectively a temporary infringement of property rights, the law imposes strict conditions on the application of these rights. In this blog, I briefly explain these requirements.
The term “ladder rights” misleadingly suggests that the obligation to tolerate access is limited to placing a ladder or scaffold on your land. However, Article 5:56 of the Dutch Civil Code (BW) must be interpreted far more broadly. Think, for example, of permitting a temporary access route for transporting building materials, requiring a garden to be cleared, or even breaking through a ceiling to install a steel structure for a neighbour’s balcony.
Firstly, it must be necessary to use the other party’s property to carry out works on your own property. Note: it is the use of the neighbour’s property that must be necessary, not the work itself. This makes sense, as one could argue about the necessity of any construction or alteration. The legal debate is therefore limited to the necessity of using someone else’s land or home.
The necessity requirement should not be taken lightly. In Aruba, the owners of a Hilton hotel wanted to use a road on their neighbour’s land for construction traffic related to expanding the hotel. The user of the road (not the owner) did not object, and Hilton would have had to remove extensive planting and an irrigation system to bring materials through its own property.
Although generally it was clear the neighbours would suffer almost no inconvenience, while the impact on Hilton and its guests would be much greater, this did not make use of the neighbour’s land necessary:
“The fact that accessing the construction site via Hilton’s own land would be much more burdensome for Hilton and its guests than it would be for RIU and its guests if access were provided via the road, does not meet the necessity requirement of Article 5:56 BW.”
Hilton’s request was therefore rejected. A property owner must demonstrate that use of the neighbour’s property is genuinely necessary.
The necessity requirement also affects the permitted use itself. Use must be kept to a minimum in terms of time and scope, and a reasonable maximum duration can be set (for example, in situations where relations are strained).
A second condition is that the use must be temporary. Permanent restrictions on property rights require different arrangements, such as establishing an easement or agreeing on a qualifying obligation. There is no fixed legal definition of what “temporary” means; this depends on the nature of the work.
Thirdly, the party requesting access must properly inform the owner about the scope, nature, and duration of the works. For higher-risk activities, such as asbestos removal, a clear and thorough action plan is expected, otherwise the request can be denied.
Finally, the user must compensate the owner for any damage caused to the property, or other losses (such as having to take time off work to supervise).
If all these conditions are met, the owner will, in principle, have to allow temporary use of their property.
In principle, as the owner may have legitimate grounds for refusal. A poor relationship between neighbours is not one of them. As the Limburg District Court put it:
“Whatever the state of the strained neighbourly relationship, it is not a valid reason to deny scaffolding rights. A good relationship between neighbours is not legally enforceable.”
However, health risks or serious personal circumstances may be valid grounds for refusal. In such cases, a balance of interests will need to be made.
If the owner is required to permit use of their property, this also applies to their tenant. Under Article 7:220(1) BW, the tenant is obliged to tolerate this use. Should the tenant suffer prolonged nuisance or a serious loss of enjoyment, they may be entitled to a rent reduction or compensation, which the landlord can subsequently recover from the user.
The success of invoking Article 5:56 BW largely depends on the specific circumstances. A typical lawyer’s answer, but experience shows it is worthwhile to strictly assess the requirements for applying Article 5:56 BW, whether you are the requesting or defending party.
Do you have questions about this topic? Or would you like advice on a similar matter? Please feel free to contact us.
