Building damage next door: careful work is not always enough

Damage from building and conversion work

A building starts to crack while a basement is being sunk into the ground next door. The shop window shatters. The contractor had a construction safety plan, a monitoring plan and a schedule of condition recording the state of the neighbouring building, and followed them. Two courts dismissed the neighbour's claim, after which the Supreme Court set the appeal judgment aside. In a later case the route that judgment opened produced an advance payment of €29,840.60. What follows is the judgment itself, the sources from which the risk must appear, the threshold on which such claims fail, and what all of it is worth to an owner whose property has been damaged.

Damage alone is not enough; an appreciable risk is

The Supreme Court of 12 January 2024, known as the sunken-basement judgment, did two things at once. The first was unfavourable to the injured owner. It follows from the legislative history of Section 6:162 of the Dutch Civil Code that conduct does not infringe a right merely because damage to property is a foreseeable consequence of it. There is therefore no strict liability for damage to another's property. Conduct is unlawful only where it breaches a written or unwritten rule intended to prevent such damage (para. 3.1.2).

The second went the other way. The court of appeal had found the contractor sufficiently careful in both preparation and execution. There was a construction safety plan, a monitoring plan with warning and action thresholds, a schedule of condition for the neighbouring building, and an investigation of its foundations by measurement and trial trenches. When the thresholds were exceeded and an obstruction was struck, the contractor halted the works, consulted its insurer and experts, and had grout injections applied. All of that together meant, in the view of the court of appeal, that the contractor had not acted carelessly, and the claim failed.

The Supreme Court read those same findings differently. They showed that the works carried an appreciable risk of damage to the neighbour's building, even where measures were taken and the work was carried out carefully. Where that risk then materialises, it cannot be taken as a matter of course that the injured party bears the loss. Three considerations counted in the balance (para. 3.2.2). The works served the interests of the contractor and its client and brought the neighbour no benefit. The damage is not automatically among the things a third party must put up with when someone else builds. And it was for the contractor to insure against third-party liability. So even with adequate measures and careful execution, the contractor may be liable (para. 3.2.3).

The client, too, remained exposed. The dismissal of the claim against him rested in part on the finding about the contractor, which had been successfully challenged, and so could not stand (para. 3.3). The Supreme Court decided nothing about his own liability; the case was remitted to the court of appeal in Arnhem-Leeuwarden, as were the related indemnity proceedings between contractor and client.

The lower courts have since answered that question. The court of appeal in The Hague upheld on 8 September 2026 a judgment in which the district court had taken as its starting point that the ruling governs the liability of the client as well (para. 4.4). That district court in The Hague had held the clients jointly and severally liable and ordered them to pay an advance payment of €82,092.96, after concluding, on a court-appointed expert report, that the works carried an appreciable risk and that no adequate precautions could have been taken, short of carrying out the foundation repair jointly (para. 2.8). A claimant who sues the contractor alone passes up a second defendant.

One point to watch when searching for these decisions is the ECLI number. Those Hague decisions build on the judgment of the same day in the indemnity proceedings, ECLI:NL:HR:2024:20, rather than on the one in the main case. A search for the latter number alone misses that whole line of authority. No judgment has yet been published in the remitted proceedings before the court of appeal in Arnhem-Leeuwarden.

Where the appreciable risk has to come from

The Supreme Court did not define when a risk is appreciable, as the district court in Rotterdam observed in June 2024 (para. 4.14). The test itself predates 2024. The opinion points to a judgment of 1973 in which an excavation carried so great a risk of subsidence of the neighbouring building that the client had to take it into account, with the express caveat that not every risk will suffice (no. 3.63). The decisions analysed point to three sources from which that risk may be established: the preparatory documents of the party that carried out the works or had them carried out, the opinion of a court-appointed expert, and with some works the nature of the work itself.

In the judgment itself the risk came from the contractor's construction safety plan, which recorded that high-risk works would be carried out that might cause damage in the surrounding area. In the Rotterdam case, on the dewatering carried out for a drinking water main, it came from a report the client had commissioned before the works, which stated in plain terms that damage to buildings from ground settlement could not be ruled out (para. 4.12). On top of that the works took far longer than planned, with the result that the calculated settlement almost doubled, from the predicted just over 1 to just over 2 centimetres to 24 to 43 millimetres (para. 4.15). The court held the contractor and the client jointly and severally liable, awarded an advance payment of €29,840.60 and referred the assessment of the remaining loss to separate damages proceedings (operative part, paras 5.2 and 5.3).

Where those preparatory documents are silent, the case is not yet lost. In an interim judgment of September 2024 the district court in Limburg found it established that the advisory reports produced by the contractor said nothing specific about risks of damage to the adjoining buildings. Nor had the advisers been asked about them (para. 2.15). The court-appointed expert then held that, even with sufficiently careful work, it was not plausible that those buildings would have escaped damage, given their age, the demolished building beside them and the ground conditions. That opened the way for reliance on the judgment, and the contractor was given leave to respond in a written submission (para. 2.24). The district court in Limburg designed that route into the case from the outset in September 2026, by proposing to ask the expert expressly whether the piling works carried an appreciable risk of damage (para. 4.15). Anyone requesting an expert report can therefore frame the question so that the answer maps straight onto the test.

The court of appeal in The Hague cited the judgment in June 2026 outside the construction context, in a case against a drain-clearing company after a leak in the flat below. The court agreed with the court below that the damage was foreseeable and could reasonably be attributed to the company. The court took into account that the company, on its own case, had specialised in drainage work for over fifty years, and that the engineer had noted on his job sheet that the blockage had probably been pushed downwards. In the court's words, that pointed unmistakably to the conclusion that pushing a blockage further down the pipe was a well-known, or at least not unknown, risk in work of this kind, at any rate for this engineer (para. 8). That no follow-up check was carried out despite this was the company's responsibility, and it had to pay €3,000 (para. 15).

The sharpest application so far dates from 9 September 2026. The district court in Zeeland-West-Brabant held that the contractor, even if it acted carefully, was liable for damage caused to the neighbour's building by its piling works. Driving piles close to another party's building carries an appreciable risk, in the court's view, and that needed no further proof. What the court made of the third factor is striking: it found not only that insuring against that liability was the contractor's responsibility, but that this contractor had in fact taken out such insurance (para. 3.9). Because no schedule of condition had been drawn up beforehand, the court considered it appropriate that the contractor also pay for cracks that the piling may have caused or widened (para. 3.14).

Without a substantiated risk the claim fails on that point

The appreciable risk is a threshold requirement, and it is for the injured party to state and where necessary prove that it existed. The district court in Amsterdam summarised the judgment in four factors in March 2026. First the appreciable risk despite careful preparation and execution. Then which parties benefit from the works, whether the damage is of a kind that must be put up with as part of ordinary social and economic life, and whether the party carrying out the works could insure against that risk (para. 4.14). The opinion delivered before the judgment placed the pleading duty elsewhere: what has to be pleaded is what the defendant should specifically have done differently (no. 4.17). The judgment makes the risk itself the object of that duty. A claimant should plead both.

In that case it was established that the conversion of the adjoining house had caused the subsidence, and still that allegation did not hold. The claimant had not set out specifically what his concerns about the building plan as executed were founded on, nor that he had brought them to the contractor's attention. The contractor argued that he had followed the approved drawings and that the house on the other side had been extended earlier without difficulty. The claimant therefore failed to substantiate what the appreciable risk was said to appear from, or that the contractor should have been aware of it. The court did not reach the other three factors (paras 4.16 and 4.17). On two other grounds, a missing watertight connection and an inadequate rainwater drain, the same interim judgment did hold the contractor liable (para. 4.18).

The steps leading up to that point are tested too. Where the causal link between the works and the damage is not established, the judgment does not come into play. The court of appeal in Amsterdam therefore dealt first with causation in a case on groundwater abstraction. It announced its intention to appoint an expert (paras 4.3 and 4.6). The court of appeal in Arnhem-Leeuwarden rejected reliance on the judgment, holding that the judgment does not concern causation but the question whether the conduct fell short of the required standard of care (para. 3.6). And the district court in Amsterdam ruled in May 2025, on a request for a preliminary expert report in an entirely different field, that the situation in the judgment is a very specific and exceptional one. Anyone invoking it must explain why it arises in the case at hand (para. 5.6).

The Supreme Court departed from the Advocate General

Advocate General Hartlief advised the Supreme Court on 31 March 2023 to dismiss the appeal in cassation (closing section of the opinion). The Supreme Court agreed with him on the first point. He read the complaints that did succeed as a single proposition: that the occurrence of damage shows the contractor failed to take sufficient care, even where no fault attaches to him (no. 4.8). He rejected that proposition, because in his view the law of tort does not aim to prevent every possibility of harm at all costs, but to encourage reasonable precautions (no. 4.9).

His objection has since become the defence every party in this position runs. The assessment is made ex ante, from the position of the party sued at the time it acted, and in hindsight events look more foreseeable than they were beforehand. That one party's conduct causes harm to another does not show that the first should have been more careful. In the words of the opinion, bad luck is a fact of life (no. 3.8, and on the ex ante assessment nos. 3.17 and 3.21).

The opinion also addresses precisely the case the judgment decides. It takes up the example of the piling contractor who does everything right. Extensive investigation commissioned, calculations without error, the latest thinking followed, the work carried out in a workmanlike manner, and the neighbour still bears the loss. Is that an acceptable outcome? The answer in the opinion was that loss is often borne by someone who contributed nothing to causing it, and that bad luck is neither fair nor capable of being eliminated (no. 3.70). The Supreme Court went the other way.

What should an owner facing damage next door do?

The first step is to record the state of the property before the works begin. A schedule of condition is the document by which existing damage is later distinguished from new damage, and where there is no such schedule, that is precisely what the dispute ends up being about. It also pays to share one's own information. In the sunken-basement case the court of appeal held against the injured owner that he had produced current drawings of his foundations only once the works were under way. The owner of an old and settlement-prone building may be expected to share such data. The Advocate General did call that observation a side point in the court's reasoning (no. 4.11), so it carries little weight as precedent. As a practical rule it is worth following.

The second step is to obtain the documents from the other side. The construction safety plan, the monitoring plan and the geotechnical advice are the documents in which the risk is usually described, and the permit file held by the municipality is often the shortest route to them. Where they reveal nothing, as in the Limburg case, the focus shifts to an expert report, and with it to a deposit for the expert's fees, which the claimant must pay.

The third step is choosing whom to sue, and that choice follows the cause. The court of appeal in 's-Hertogenbosch held in November 2024 that the cause of that head of loss lay in the siting of the new building. It lay in the building plan itself rather than in the way the contractor had executed it. On that finding the client's own defence foundered, namely that the contractor had already paid for the damage: joint and several liability requires two parties liable for the same loss, and the contractor was not liable here (para. 3.7.3). The client was left on his own. Where obligations to compensate the same loss do rest on more than one party, they are jointly and severally liable under Section 6:102 DCC. The injured party then chooses whom to pursue, as happened in the Rotterdam case. An owner who sells shortly after the damage should bear in mind that the deed of transfer may assign the claims against third parties to the buyer.

For the client the lesson runs in the opposite direction. A comprehensive construction safety plan does not prevent liability, and it describes the risk the neighbour will later rely on. The judgment points the way itself: it was for the contractor to insure against liability to third parties for damage. For the client that means checking the cover of the contractor's insurance before the works start, and agreeing expressly, as between them, who bears which loss. The judgment leaves the standard of care where it was and moves the debate to who bears the residual risk. That makes the cover a question of liability, and no longer only a cost.

Where the cause lies in a wall the two buildings have in common, the question shifts from liability to contribution. On foundation repair of a shared wall both owners pay towards necessary renewal, even where no one is at fault.

Frequently asked questions

Is the neighbour liable as soon as his building works damage my property?

No. The Supreme Court confirmed in 2024 that conduct does not infringe a right merely because damage to property is a foreseeable consequence of it. A breach of a rule designed to prevent such damage is still required. The second route in the judgment supplements that, where the works carried an appreciable risk of damage that has materialised.

Does this route apply only to building works?

The courts cite it outside that field as well. The court of appeal in The Hague did so in June 2026 in a case against a specialised drain-clearing company, where the known risk appeared in part from the engineer's own job sheet. What matters is that the works carried an appreciable risk of damage to another's property, not the trade in which they are carried out.

Does causation have to be proved separately?

Yes. Where it is not established that the works caused the damage, the question the judgment addresses never arises. The court of appeal in Amsterdam therefore dealt first with causation in a case on groundwater abstraction and announced its intention to appoint an expert, with the deposit for the expert's fees falling on the claimant under the general rule. That rule has been set out in Section 187 DCCP since 1 January 2025.

Cited case law

Supreme Court: ECLI:NL:HR:2024:17 (12 January 2024, sunken basement, damage to property is not in itself an infringement of a right, but where an appreciable risk materialises even carefully executed works may be unlawful); ECLI:NL:HR:2024:20 (12 January 2024, the related indemnity proceedings between contractor and client, set aside because the judgment in the main case could not stand).

Opinion: ECLI:NL:PHR:2023:378 (Advocate General Hartlief, 31 March 2023, advising that the appeal be dismissed; the Supreme Court followed him on the first ground and not on the rest).

Courts of appeal: ECLI:NL:GHDHA:2026:2744 (The Hague, 8 September 2026, the judgment also governs the liability of the client; parallel judgment ECLI:NL:GHDHA:2026:2750); ECLI:NL:GHARL:2026:4586 (Arnhem-Leeuwarden, 14 July 2026, a different case and not the remitted one; the judgment is cited but the case turns on ordinary fault); ECLI:NL:GHDHA:2026:2558 (The Hague, 2 June 2026, cited outside construction against a drain-clearing company, the known risk appeared in part from the engineer's job sheet); ECLI:NL:GHAMS:2024:818 (Amsterdam, 2 April 2024, interim ruling, groundwater abstraction, causation first and an intention to appoint an expert); ECLI:NL:GHSHE:2024:3620 ('s-Hertogenbosch, 19 November 2024, a party who has dangerous works carried out must take adequate precautions; where the cause lies in the building plan, the client alone is liable); ECLI:NL:GHARL:2025:6502 (Arnhem-Leeuwarden, 21 October 2025, the judgment does not concern causation).

District courts: ECLI:NL:RBZWB:2026:8725 (Zeeland-West-Brabant, 9 September 2026, piling works, liable even on careful conduct, declaratory judgment and separate damages proceedings); ECLI:NL:RBDHA:2024:7462 (The Hague, 15 May 2024, clients jointly and severally liable on a court expert report, advance payment of €82,092.96, upheld on appeal); ECLI:NL:RBLIM:2026:8907 (Limburg, 2 September 2026, the appreciable-risk question written into the instructions to the expert); ECLI:NL:RBROT:2024:5358 (Rotterdam, 5 June 2024, dewatering, the appreciable risk followed from the report the client had commissioned, joint and several liability and an advance payment of €29,840.60); ECLI:NL:RBAMS:2026:3068 (Amsterdam, 18 March 2026, interim judgment, four factors, the allegation fails on the substantiation of the risk while two others succeed); ECLI:NL:RBAMS:2025:3177 (Amsterdam, 15 May 2025, request for a preliminary expert report, the situation in the judgment is very specific and exceptional); ECLI:NL:RBLIM:2024:7183 (Limburg, 11 September 2024, interim judgment, the advisory reports were silent on the risk, the appointed expert was not; the contractor was given leave to respond in a written submission on the application of the judgment).

Juriaan de Vries is a lawyer at Prime Law, specialising in corporate and commercial litigation. See the disclaimer.

Damage to the neighbouring building: careful work is not always enough