Asbestos is not merely a matter between contracting parties. Fibres do not respect property boundaries: after a fire, damage or improper roof cleaning, they may end up on someone else's property. Once that happens, you leave the terrain of the sale — where you would fall back on the warranty for hidden defects against your own seller — and of the contract for works, and you enter another area of the law: neighbour nuisance. For owners of an asbestos roof, but also for those who have such works carried out, it is important to understand when asbestos gives rise to liability towards neighbours, and on what legal basis.
The equilibrium doctrine: liability without fault
Neighbour nuisance is based on the so-called equilibrium doctrine. Traditionally, the Court of Cassation grounded it on Article 544 of the old Civil Code; since the reform of property law, the doctrine has been expressly enshrined in Book 3 of the Civil Code. The core idea remains the same: neighbouring owners must observe a certain balance. Whoever disturbs that balance by imposing on his neighbour a nuisance that exceeds the ordinary inconveniences of neighbourly life must compensate for that excessive nuisance.
The crucial feature of this duty to compensate is that it does not presuppose any fault. That distinguishes it sharply from the classic fault-based liability under Article 1382 of the Civil Code. For fault-based liability, you must show wrongful conduct, damage and a causal link. For neighbour nuisance, it is sufficient that a non-faulty but excessive disturbance of the balance between the properties be established; the nuisance is then compensated even if the party causing it did nothing wrong. Both tracks can coexist. Someone who spreads asbestos fibres through a prohibited act simultaneously commits a fault and disturbs the neighbourly balance, and can be held liable on both grounds. Where fault is lacking, the fault-free compensation via the equilibrium doctrine remains an independent avenue for the affected neighbour.
When does asbestos give rise to excessive nuisance?
The mere presence of asbestos-cement corrugated sheets on a roof is not in itself a fault, nor an excessive nuisance. Bonded corrugated sheets barely release any fibres under normal use, so the neighbourhood is not disturbed. It is different when fibres actually escape and end up on the adjoining property. The Court of First Instance of Antwerp, Turnhout Division, held in a judgment of 11 February 2019 that the presence of asbestos-cement corrugated sheets is not in itself a fault, but that laying them, having them laid or keeping them is indeed attributable to the owner. In that case, a fire caused the asbestos particles from the corrugated roof to drift down onto the neighbouring property. That constituted excessive neighbour nuisance, for which the owner was liable to pay compensation. The attribution therefore does not lie in the possession of asbestos as such, but in the decision to install or keep those sheets and thereby maintain the source of later dispersal.
Cleaning and de-mossing an asbestos roof
A second classic scenario is the cleaning or de-mossing of an asbestos roof. Since the tightening of the Materials Decree, it is prohibited to clean or de-moss an asbestos roof or asbestos facade, regardless of the technique used. The reason is simple: any form of mechanical treatment releases massive quantities of fibres. High-pressure cleaning is particularly harmful, because the water jet leaches the asbestos cement and washes the fibres into the surroundings.
Case law had already labelled this as negligent even before the explicit prohibition. The Court of Appeal of Brussels held on 20 September 2002 that cleaning an asbestos roof with high pressure without the necessary precautions constitutes negligence. And the Court of First Instance of Leuven, in a judgment of 12 October 1999, held that faulty roof de-mossing was attributable to the client. That last decision is telling: not only the contractor, but also the client who commissioned the works bears responsibility. Anyone who nevertheless has their asbestos roof cleaned today commits a prohibited and faulty act, and risks both fault-based liability and a duty to compensate for the nuisance that the released fibres cause to the neighbours.
An actual harm is required
However broad the protection of the neighbour may be, it has an important limit: there must be actual harm. The mere theoretical possibility that asbestos might one day be released is not sufficient to speak of excessive nuisance. The Court of First Instance of Leuven confirmed this in a judgment of 18 December 2020: a mere risk of asbestos contamination is not enough; there must be a real, actual disturbance of the balance between the properties. An intact asbestos roof at the neighbour's, which releases no fibres, therefore in principle gives no cause for a claim. Only when the roof becomes damaged, crumbles, catches fire or is improperly treated, and fibres actually drift down, does harm arise that justifies compensation or restoration. For those concerned about a neighbour's asbestos roof, this means that patience is sometimes required: without concrete contamination, there is little legal basis for action.
The client remains liable
A final important point concerns the role of the contractor. Those who outsource their roofing works to a professional sometimes assume that they thereby shift all liability. For fault-based liability, that may be partly correct, but for neighbour nuisance the position is different. The duty to compensate under the equilibrium doctrine rests in principle on the owner or client as the person who has the enjoyment of the property and sets the disturbance in motion. Even someone who carefully engages a contractor therefore remains liable to compensate the affected neighbour as client, regardless of whether he himself committed a fault. In other words, the neighbour does not need to figure out whether the owner or the contractor made a mistake; he can address the client directly on the basis of the excessive nuisance. The mutual relationship between client and contractor is then settled contractually or by way of a recourse action.
How this neighbour-law liability interacts with the certification, information and warranty obligations that arise in a sale or renovation is discussed in our guide to asbestos in real estate.
How Reius Advocaten can assist you
Are you involved in a specific dispute with a neighbour about an asbestos roof or an improperly performed cleaning? Reius Advocaten will assess which basis is strongest in your file — fault-based liability, fault-free compensation via the equilibrium doctrine, or both — and will assist you in negotiations or proceedings, whether you are the affected neighbour or the party being addressed. Feel free to contact us at info@reius.be or via the contact form.