Homeowner Excavates Wall Inside House

In a series of legal proceedings, a property owner, identified as the plaintiff, is engaged in a dispute with their neighbors, the defendants, over damages to their property. The conflict stems from construction work carried out by the defendants, which resulted in a 1-meter-wide dig on the plaintiff's property.

The district court took evidence by obtaining an expert opinion, and the plaintiff continues to pursue their claim on appeal. The defendants, who had initially purchased an adjacent property to build a house with a garage, had previously held the claim to be invalid and denied the necessity and requirement of the measures claimed to restore the original condition of the plaintiff's property.

The basic obligation of the defendants to restore the condition prior to excavation is undisputed. However, the plaintiff's claim to their interest in this, which may not be advisable from a reasonable point of view - at least at present - cannot be rejected as harassment from the outset. The plaintiff is seeking damages from the defendants due to a delay in the restoration work and considers the work insufficient. They are also demanding that the defendants remove an L-stone wall due to an alleged overbuild.

The plaintiff's legal (delictual) claims for restoration of the previous state of their property were successfully asserted in a prior process. However, in the current case, the Higher Regional Court (OLG) admits the appeal but finds it unfounded, stating that the plaintiff's claim for replacement is invalid in several respects. The OLG rules that a material-legal claim for damages does not exist for the plaintiff, and granting them money instead of restoration in kind would violate good faith.

The OLG does not assume that damage to the plaintiff's property has occurred only in the future. They consider the exercise of a right impermissible if it can only serve the purpose of causing damage to another, but the plaintiff's claim is not assumed to be harassment from the outset. The regional court rejected the plaintiff's request for enforcement, stating that the settlement agreement did not contain an enforceable provision. The defendants were ordered to pay damages to the plaintiff for damage to the vegetation on their property in another legal dispute.

The parties reached a settlement agreement in which the defendants agreed to restore the dug-out section of the property. However, the plaintiff is dissatisfied with the progress of the restoration work, leading to the ongoing legal dispute. The defendants' claim that the damages claim exists independently of any removal of L-stones and any further necessary measures, as additional measures may still be necessary.

The neighbors' dispute over the damaged boundary wall is a complex issue, with both parties presenting their arguments in court. The OLG decision states that the claim for replacement of the interest in the underlying restoration obligation is unfounded in substance. The court of appeal (OLG) considers the exercise of a right impermissible if it can only serve the purpose of causing damage to another, but the plaintiff's claim is not assumed to be harassment from the outset. The case continues to unfold as the plaintiff pursues their appeal.