The Right of an Immovable’s Owner to Have Inconvenience or Injury Abated under the Civil and Commercial Code Section 1337

Abstract

Civil and Commercial Code Section 1337 is the provision about an exclusive right relating to an action to abate immovable property to the greater injury or inconvenience of the owner. Such an act consists of several challenges facing law enforcement and interpretation. According to the study and analysis, the researcher found that Section 1337 is the provision aiming to specially protect the rights of the owner of immovable property when the owner has suffered greater injury or inconvenience caused by exercising the rights of others. Thus, applying this section does not require consideration of the principles of tort liability. Moreover, the owner of immovable property also has the right to arbitrarily abate greater injury or inconvenience to himself without applying to the court since it is the right that acts over the property of the owner of immovable property. In addition, the owner is entitled, without prejudice to any claim for compensation, to have such injury or inconvenience abated without consideration of liability in tort. Hence, suffice it to say that applying Section 1337 to immovable property is beneficial to the owner. Based on the result of the study and analysis, the researcher suggests that law enforcement authorities should consider the spirit of the law by applying Section 1337 individually and should not try to adjudicate by involving the principle of tort liability. The owner of immovable property must exercise the right to abate greater injury deliberately under the scope of rights. Regarding the right to claim compensation, the researcher suggests that calculating compensation claims in tort following Section 438 should be considered as well.