As a rule, a person who exercises a right lawfully is not liable for harm resulting from it. The neighbour who builds on their own land, the creditor who demands payment, and the employer who terminates an indefinite contract are all exercising recognised rights. Yet no right is absolute, and it is settled in doctrine and case law that the exercise of a right may deviate from its social purpose and become an abuse giving rise to liability. Kuwait Civil Code No. 67 of 1980 adopts this doctrine with defined tests, and regulates alongside it the question of excessive neighbour nuisance. This article explains both ideas and their practical applications.
The Tests of Abuse
The exercise of a right is not abusive merely because it harms another. One of the following tests must be satisfied:
- Intention to harm: the subjective test, satisfied where the right holder's only purpose in exercising the right was to harm another, as with someone building a high wall serving no purpose but to block a neighbour's light.
- Illegitimacy of the interest: where the interest pursued is contrary to law, public order, or morals, the exercise of the right does not merit protection.
- Disproportion between benefit and harm: the objective test with the widest application, satisfied where the interest sought is so slight as to be wholly disproportionate to the serious harm inflicted on another.
These tests show that the court examines not the legitimacy of the right itself but the manner and purpose of its exercise. This is an evaluative inquiry turning on the circumstances of each case, so the precision with which the facts are presented is decisive.
Excessive Neighbour Nuisance
This principle rests on a simple practical idea. Living side by side requires a measure of mutual tolerance, but that tolerance has a limit:
- The ordinary tolerance standard: every owner must refrain from excessive use of their property causing a neighbour harm exceeding what is ordinarily tolerated between neighbours.
- A flexible objective test: what is ordinary is measured by the nature of the area, the location and designated use of both properties, and prevailing custom. What is ordinary in an industrial area may not be in a quiet residential one.
- Priority in time: who was there first is relevant to the assessment. A person who moved next to an existing factory is in a different position from one confronted by a factory newly built alongside.
- No fault required: liability arises even absent fault by the owner and even where the activity is licensed, since what matters is that the harm exceeds ordinary tolerance rather than any breach of law.
Applications in Property Disputes
Property disputes are the richest field for both principles, and the most common instances are:
- Noise and vibration: from workshops, construction, or equipment operating outside normal hours so as to prevent neighbours from enjoying their homes.
- Odours, smoke, and dust: emitted by a commercial activity within a residential area beyond what is ordinarily bearable.
- Blocking light and air: by erecting structures of no genuine benefit to their owner.
- Water ingress and damp: passing from one property to another through neglected maintenance, among the most frequent disputes.
- Adjacent excavation: threatening the foundations of a neighbouring building without the necessary technical precautions.
- Surveillance cameras: directed into a neighbour's home so as to intrude on privacy, an increasingly common modern instance.
Applications in Other Fields
The doctrine is not confined to neighbouring land and extends across several areas:
- Employment: an employer exercising rights of termination, transfer, or reorganisation with the purpose of harming an employee or forcing a resignation, connected to the concept of arbitrary dismissal.
- Litigation: bringing vexatious claims or repeating unfounded appeals to exhaust an opponent and obstruct their rights, known as abuse of the right to litigate.
- Precautionary measures: levying an attachment manifestly excessive relative to the debt or without serious basis, rendering the attaching party liable for the resulting harm.
- Companies: a majority using its power to secure a private benefit at the minority's expense, or a minority using its right of objection to obstruct necessary decisions without justification.
- Contracts: exercising a right of termination or a contractual discretion in a manner inconsistent with good faith in performance.
Remedies
The remedy is not confined to monetary compensation. The court has wider powers directed at removing the harm itself:
- Damages: for the material and moral harm suffered, assessed by reference to the gravity and duration of the harm.
- Removal of the harm: the court may order the demolition of what was abusively erected or the removal of the source of the nuisance, the most effective remedy in neighbour disputes.
- Mitigating measures: the court may instead require the defendant to take steps reducing the harm to ordinary levels, such as sound insulation, altering operating hours, or redirecting a camera.
- Interim measures: urgent applications may be made to preserve evidence of the condition or to halt new works before the harm becomes entrenched.
- A licence is not a defence: the defendant's administrative licence does not negate civil liability towards a neighbour. A licence removes the regulatory breach, not the particular harm.
Practical Guidance
- Document the harm objectively: dated recordings, technical reports measuring noise or vibration, and photographs showing both source and effect.
- Begin with a written amicable notice before litigating. It establishes the neighbour's knowledge of the harm and its continuation despite warning, an important factor in assessment.
- Apply early to preserve evidence of the condition, as many forms of harm are removed before the claim is heard.
- Do not meet harm with counter-harm, which reverses your legal position and weakens your claim.
- Review licensing and building requirements. Breach strengthens your position even though it is not a condition of liability.
- Quantify the harm realistically and support it with documents. Exaggerated claims undermine the credibility of the case.
Balancing an owner's freedom to use their property against a neighbour's right to quiet enjoyment is the essence of this doctrine, and achieving it requires precise presentation of facts and sound technical proof. Yamnak Law Firm examines neighbour disputes, prepares applications to preserve evidence, and brings claims for removal of harm and damages for abuse of rights.
