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[Housing Talk] Damages for interference to the quality of housingBy Korea Herald
Published : Sept. 12, 2023 - 16:24
Have you ever had your sunlight blocked or your view blocked by huge skyscrapers in front of your house? Such quality of life interests are also considered a protected right under Korean law. A typical quality of life impairment includes sunlight and view obstructions, both of which the court recognizes as specific rights and therefore prescribes specific remedies.
First, let's talk about obstruction of sunlight. In order for an obstruction of sunlight to be considered illegal and liable, there must be damage beyond the tolerance level of social norms. Whether there is an obstruction of sunlight beyond the tolerance level of social norms should be decided by considering all circumstances, such as the degree of damage, the nature of the interests harmed, the social evaluation of those interests, the use of the damaged building, the local characteristics, the order of land use, any preventive measures against causing damage and their feasibility, any violation of public law regulations and the negotiation process.
Where there are direct regulations on the obstruction of sunlight under the relevant law, such as the Construction Act, compliance with these regulations may be an important basis for deciding the unlawfulness of the obstruction under private law. However, the protection of sunlight guaranteed by public law regulations is intended to provide the protection guaranteed by private law to the extent possible in the area concerned, and should therefore be regarded as minimum criteria for the protection of the right to sunlight. In certain cases, even if a new building formally complies with public law regulations at the time of construction, sunlight obstruction that goes well beyond the tolerance level of social norms may be considered unlawful.
If an obstruction of sunlight is deemed unlawful, the victim may file a lawsuit for damages or, if construction of the offending building is still in progress, a lawsuit for a stop work order. However, obtaining a court order to stop construction is generally more difficult than pursuing damages.
The right to a view, on the other hand, is legally protected only when a particular location has a special scenic value, and when the enjoyment of such scenic benefits is so significant that it should be recognized as an independent interest according to social norms, such as when a building is constructed at that location solely for the sake of the view. Scenic benefits that do not reach this level of significance are not eligible for legal protection. For this reason, violations of the right to a view are generally more difficult to establish than violations of the right to sunlight.
The question of whether the obstruction of a view beyond the level of tolerance according to social norms is unlawful should be decided on the basis of the following: the ratio of the area of the visible sky to that of the obstructing building in the total window area when looking out of the window from a distance; the ratio of the obstructed view, which refers to the proportion in which the obstructing building prevents the view to the outside; the distance between the obstructed building and the obstructing building, the height of the obstructing building, the degree of invasion and its character represented by the ratio of distance and height; the general structure of the obstructing building, including such openings in the building as the location of windows and the living room; any violation of public law regulations on distance under construction laws; regional characteristics in the broad sense, including the overall situation of the buildings in which the obstructed building is located; the circumstances and public nature of the construction of the obstructing building; the tortfeasor’s preventive measures and the feasibility of avoiding payment of damages; and the tortfeasor’s intent to cause damage and the order of construction of buildings.
The Supreme Court in March 2021 recognized the damage caused by excessive reflected sunlight as a new type of interference with the quality of life. Damage caused by excessive reflected sunlight means damage caused by the fact that a building whose exterior walls are made of glass has been constructed on adjacent land, excessive reflected sunlight has occurred and as such reflected sunlight flows into the adjoining residential areas, the residents therein have endured suffering such as obstruction of their view as a result of the influx of such reflected sunlight. The extent of such interference must exceed what is generally tolerable in society in order to claim damages based on excessive reflected sunlight.
Whether the interference exceeds the limit of social tolerance should be determined after comprehensive consideration of the following circumstances. The intensity and angle at which the reflected sunlight enters the damaged buildings; the time and duration of the influx of the reflected sunlight; the nature and extent of the damage depending on the location of the windows and living rooms of the damaged buildings; the details of the damaged interests; the background leading up to the construction of the building in question and its publicity; the separation distance between the damaged apartments and the building in question; the violation of public law regulations, such as the provisions on limitation and exception under the construction laws and regulations; the use and utilization status of the area where the building is located; the preventive measures to reduce the damage and the possibility of avoiding damage; the order of land use; and the progress of negotiations.
An action for the cessation of construction may be brought in the same manner as an action for damages. However, because an action for cessation of construction significantly affects the interests of a third party, it is more difficult to obtain court relief than damages.
This is the fifth installment in a series of columns written by attorneys at Barun Law LLC to provide legal insights in the field of construction, real estate and housing in South Korea. The writer is a partner attorney at the firm. -- Ed.
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