Concept and legal definition of radiation
The term radiation is particularly significant in German law in the context of neighbor law, and generally refers to the intrusion of emissions onto a property from the outside. Emissions within the meaning of Section 906 of the German Civil Code (BGB) are effects emanating from another property. Radiation, in this context, specifically describes effects caused by light, heat, reflection, or electromagnetic waves. It must be distinguished from other forms of emission such as vibrations, noise, or tremors.
Radiation is therefore a form of so-called “direct emission”, which can be triggered by human activity or technical devices. Classic cases of radiation include reflections from glass facades, light reflections from photovoltaic systems, or artificial light from neighboring properties.
Legal framework of radiation in neighbor law
Legal foundations
The relevant provisions relating to radiation can be found in Sections 906 ff. BGB, which codify civil emission protection law. Furthermore, the Federal Immission Control Act (BImSchG) and the ordinances based on it contain provisions also regulating light and radiation emission protection.
Key norms:
- § 906 BGB (Introduction of Intangible Substances)
- § 1004 BGB (Claims for removal and injunction)
- Federal Immission Control Act (BImSchG)
- State neighbor law acts
§ 906 BGB: Duty to tolerate and right of defense
According to § 906 (1) BGB, a property owner must tolerate effects as long as they do not, or only insignificantly, impair the use of the property. If the radiation exceeds the locally customary level, it is deemed significant within the meaning of the law and can generally be repelled.
Examples of significant radiation:
- Glare from highly reflective facades
- Intensive heating effect from radiant heat
- Excessive light pollution from lighting installations
§ 1004 BGB: Right to defense and removal
If there is a significant impairment, the owner may demand injunctive relief or removal under § 1004 BGB. The requirement is that there is no obligation to tolerate, for example because the effect is customary for the area or associated with a special official permit.
Significance of local custom and materiality
The central question in the legal assessment of radiation is whether the effect is locally customary and insignificant. The key criterion is the standard perception at the particular location and the feelings of a reasonable average person.
Possible assessment factors:
- Type and intensity of the radiation
- Duration (permanent, occasional, seasonal)
- Character of the adjacent properties (residential buildings, commercial, agriculture)
Judicial determination
The assessment of materiality is often carried out by experts and tailored to the individual case. Courts use technical measurement values (e.g., lux for light, degrees for heat radiation), but always take the specific local circumstances into account.
Individual manifestations of radiation
Light and glare emissions
This includes effects caused by artificial or natural light sources as well as reflections. A typical example is glare caused by sunlight that is reflected from surfaces onto neighboring properties.
Electromagnetic radiation
Effects caused by mobile phone towers, directional radio, transmitting installations, or power lines are also legally regarded as radiation. Here, the focus of the assessment is on health effects and electromagnetic compatibility.
Thermal radiation
Radiant heat emission, for example from large systems, heating installations, or solar panels, also falls under the concept of radiation. Again, it is decisive whether the impairment exceeds the threshold of materiality.
Rights of defense and legal protection
Legal basis for claims
The defense against unlawful or significant radiation generally takes place via:
- Claim for injunctive relief according to § 1004 BGB
- Claim for removal pursuant to § 1004 BGB in conjunction with § 906 BGB
- Defensive and compensation claims under the BImSchG
- Assertion of claims for damages if a loss in value occurs (e.g., § 906 (2) sentence 2 BGB)
Self-help measures and legal enforcement
As a rule, property owners are required to pursue legal action before taking measures on their own initiative (such as covering or removing a neighbor’s installation). Legal enforcement mostly takes place through preliminary injunctions or lawsuits before the civil courts.
Building law and public law aspects
Permissibility under building law
The permissibility of technical installations causing radiation is also governed by public building law. Building permit procedures regularly involve checks relating to emission protection. Objective legal requirements (distance areas, reflection protection) are regulated through development plans, state building codes, and special provisions.
Environmental and emission protection law
The Federal Immission Control Act regulates protection against harmful environmental effects, which also includes radiation. Operators of facilities requiring approval must take technical and organizational measures to prevent inadmissible radiation.
Distinction from related legal concepts
Not every effect on a neighboring property constitutes relevant radiation. Effects caused by substances (such as exhaust gases, odors, liquids) or by noise and vibration, which are sometimes subject to special legal regulations, must be distinguished.
Case law and current developments
Courts have addressed issues relating to radiation in numerous judgments. Jurisprudence is developing dynamically, especially with regard to light and reflection emissions, particularly in connection with increasing building density, energy-efficient refurbishment, and the expansion of renewable energies (e.g., photovoltaic systems).
Sample decisions:
- BGH, judgment of 02.02.1979 – V ZR 179/77 (on glare caused by reflected sunlight)
- OLG Düsseldorf, judgment of 20.12.2018 – I-9 U 35/17 (on radiation from photovoltaic systems)
Summary
From a legal perspective, radiation describes the effect of non-material energy (in particular light, heat, radiation) from one property onto another, and is of particular importance in neighbor law. The assessment is based on statutory requirements, with local custom and the materiality of the impairment being key. Owners are protected against substantial and non-customary radiation and can demand cessation or removal. In addition, building and environmental law requirements must be observed. The rapid technological development, especially in the fields of renewable energies and communication technology, leads to dynamic changes in the legal situation and case law.
Frequently Asked Questions
What legal foundations regulate the protection against unreasonable radiation in neighbor law?
In German law, protection against unreasonable effects from radiation is mainly regulated in the German Civil Code (BGB). The key provision is § 906 BGB, which deals with the “introduction of intangible substances.” This section distinguishes between substantial and insubstantial impairments. Neighbors have a defensive claim if light, heat, or similar effects (such as reflections from solar panels or LED lights from advertising installations) emanate from a property onto neighboring property and these are classified as substantial within the meaning of § 906 (1) BGB. In addition, state laws, such as state neighbor law acts, may contain supplementary rules. Public building law, particularly state building codes, as well as special regulations, for example for the protection against light pollution, may also be relevant.
What role does the materiality of radiation play in the claim for injunctive relief or removal?
Whether a claim for injunctive relief or removal exists depends largely on whether the radiation is considered significant. In assessing materiality, the key factor is whether an average resident in the given circumstances and specific environment would regard the effect as substantially disturbing. The decisive perspective is that of a reasonable average person, not that of unusually sensitive individuals. Case law bases its assessment on local conditions; thus, for example, higher levels of light exposure in industrial areas may be considered insignificant. Depending on the type of radiation (e.g., reflection, glaring light, heat exposure) and its extent, technical limit values, such as those defined in standards or guidelines (e.g., DIN standards on light emissions), must also be taken into account.
Who bears the burden of presentation and proof in disputes over radiation?
In civil disputes over radiation, the burden of presentation and proof generally lies with the aggrieved neighbor (plaintiff). He or she must specifically demonstrate that a certain form of radiation emanates from the neighboring property and that this significantly impairs the use of his or her property. If the plaintiff succeeds, the interferer must present and prove that the impairment is insignificant within the meaning of § 906 BGB, in particular that any applicable limit or guideline values for the type of radiation are met or that the effect is customary for the area. In case of dispute, experts are often called in to determine the type, extent, and intensity of the effects.
Are there specific regulations or court decisions regarding radiation from solar installations?
Yes, there are both state regulations and numerous court decisions specifically dealing with radiation or light reflection from solar installations. Courts (such as the Regional Court of Munich I, judgment of 06.12.2012, Az. 31 S 7694/11) have determined that glare from solar installations can be unacceptable for neighbors if they exceed the usual level in terms of intensity, duration, and frequency. As a rule, the installation of a solar panel is permissible as long as it does not cause substantial impairment. In assessing materiality, meteorological expert opinions and relevant DIN standards (e.g., DIN 5034 on daylight usage) are also taken into account.
To what extent can public law provisions affect the civil law claim for defense?
Public law provisions may limit the civil law claim for defense according to § 906 BGB. If, for example, a public law permit has been granted for a structural installation, under certain conditions a neighborly compensation claim under § 906 (2) sentence 2 BGB may replace the claim for injunctive relief. This means that the neighbor has to tolerate the effect but can demand reasonable financial compensation. The courts examine in these cases whether the neighbors’ protection was sufficiently considered during the approval process and whether the public law provisions specifically address the emission at issue (e.g., light or heat effects).
How can affected parties pursue civil action against inadmissible radiation?
Affected parties have various legal options. Initially, an attempt can be made out of court to reach an amicable settlement or adjustment of the disturbing installation with the neighbor. If this fails, injunctive claims according to § 1004 BGB in conjunction with § 906 BGB are available. In addition, claims for removal may also exist if further use is to be expected. In case of court proceedings, the initiation of an arbitration or mediation procedure under state law must usually be considered first; in some federal states this is mandatory. If no amicable solution is reached, a lawsuit can be filed with the competent district or regional court.
What is the significance of technical standards and expert opinions in court proceedings?
Technical standards, such as DIN 5034 (daylight in interiors), DIN EN 12464 (lighting of workplaces), or the guidelines for measurement, assessment, and reduction of light emissions issued by the Federal/State Working Group on Emission Control (LAI), are regularly used to assess whether a radiation is significant. In cases of dispute, courts usually commission an expert report to evaluate the intensity, duration, and reasonableness of the emissions. Compliance with technical standards often suggests that there is no significant impairment, but this is not binding if the actual impact is perceived as particularly severe. The expert report usually forms the objective basis for the court’s decision.
