Casting shadows: navigating the right to sunlight in Serbian law
Imagine buying your dream home, or living in one for decades, only to find your daylight blocked by a new building next door with no clear legal remedy to preserve your sunlight.
In Serbia, homeowners face this threat. Current Serbian law offers no direct statutory protection for sunlight access. Instead, property owners must navigate a patchwork of neighbour laws, inconsistent urban planning enforcement, and court remedies typically limited to monetary compensation rather than prevention. As urban density increases and disputes over sunlight intensify, the question arises: has the time come to explicitly recognise and protect this fundamental right?
Historical framework: the “right to a window” and sunlight in 19th century
The idea that property owners should enjoy access to sunlight is not new. Roman law recognised protecting a neighbour’s light, and 19th-century Serbian law followed suit. Under the Serbian Civil Code of 1844, the “right to light” was not protected as a general right, but was established only through a specific “easement” known as a “right to a window”, which allowed access to light and air (although not to a view). This approach closely mirrored Austrian civil law that also distinguishes between rights to light and rights to view.
Pre-1945 Serbian law acknowledged sunlight as a legally protectable interest, but only when explicitly established as an easement. A notable example is the 1886 case in the Royal Court of Justice in Zagreb (reported in the Serbian legal journal Branič in 1887) that ruled, unless a legal servitude of light had been secured, property owners could not stop construction that threatened to block their windows. The court cited the principle that exercising lawful property rights did not require consideration for a neighbour’s sunlight unless an easement existed. This approach was repeatedly affirmed by the Court of Cassation in Belgrade, which dismissed claims unless the right to light was clearly established.
At that time, light could only be protected through a formally acquired easement, established by contract, inheritance, or long-term peaceful use. Without such a legal servitude, landowners were not entitled to block neighbouring development, even if it obstructed their windows.
This legacy remains relevant today as modern Serbian law still lacks a clearly defined right to sunlight, leaving courts to rely on outdated doctrines and property owners without effective safeguards.
Current property law framework: no explicit right, but legal remedies exist
In Serbia today, the right to sunlight is not explicitly protected by statute but arises implicitly from the general principles of “susedsko pravo” (neighbour law), which require adjacent property owners to use their property with mutual consideration as set out in the Law on Basic Property Relations.
Article 5 obliges landowners to avoid or remove undue interference with neighbouring properties, listing nuisances like smoke, odours, noise, and wastewater, and prohibiting them if they exceed typical levels or cause significant damage (“znatnija šteta”). Although sunlight loss is not listed, severe shading can be treated as such interference, and case-law has confirmed this interpretation. For example, Serbian courts have held that a 20% reduction in an apartment’s market value due to diminished functionality caused by a neighbouring construction can qualify as significant damage even when the building was lawfully permitted (Supreme Court of Serbia, Rev. 6866/97).
Where interference occurs, Article 42 allows owners to bring legal negatory action to stop the disturbance, and if sunlight loss reduces property value or causes measurable harm, compensation may be sought under general tort rules.
Additionally, Serbian law incorporates the principle of abuse of rights, preventing owners from exercising property rights in ways that unfairly harm others. Article 6(2) explicitly forbids using property contrary to its intended purpose, which could cover actions severely restricting sunlight.
Thus, while there is no formal right to sunlight, Articles 5 and 42 of the Law on Basic Property Relations provide mechanisms to protect property owners from excessive loss of sunlight caused by neighbours.
Urban planning: daylight protection through zoning rules and their limits
Unlike the Law on Basic Property Relations, which only indirectly protects the right to sunlight through general neighbour law, planning and urban regulations (e.g. the 2015 Planning Rulebook) provide more explicit protection by setting clearer rules for land subdivision, regulation, and construction, directly addressing daylight access and its protection in urban planning. The Rulebook requires new buildings to avoid overshadowing neighbours for more than half the daylight hours and specifies minimum distances between buildings (typically 5 metres between freestanding structures or at least 2.5 metres from plot boundaries).
In the absence of a general statutory right to sunlight, these planning rules are the main preventive mechanism. While some consider the 2015 Rulebook outdated and lacking clear, enforceable standards for daylight, ventilation, and sustainability, it still offers some protection, though recent cases show authorities do not always respect these requirements when issuing permits.
The administrative process also fails to consistently safeguard neighbours’ interests. While formally entitled to participate, neighbours often face practical barriers. When a developer seeks approval for a planning document, location conditions, or a construction permit, affected neighbours are theoretically entitled to be notified and to lodge objections. They may appeal permitting decisions and challenge them before an administrative court if urban planning rules, such as those governing daylight or minimum distances, were improperly applied. Yet, these safeguards have limitations. Neighbours are often unaware of projects until construction starts, and even when informed, they may lack the expertise to object effectively. Furthermore, a permit issued based on a valid zoning plan carries a strong presumption of legality. In practice, however, compliance with zoning rules is not always consistent, and this presumption makes such permits difficult to overturn.
Serbian case-law on sunlight loss: compensation over prevention
Recent Serbian court cases show that when new construction causes significant loss of sunlight or property value to neighbours, even if permits are valid, courts typically award financial compensation rather than ordering changes to the offending buildings. For example, in Belgrade (2015-2023) and Vranje (2021-2023), courts found both developers and authorities liable for violating planning rules, but relief was limited to damages.
This approach aligns with international best practices, which emphasise resolving disputes through compensation and mitigation rather than litigation, reserving injunctive relief for only the most severe or bad faith cases. Such a model supports both the protection of neighbours’ rights and the broader goals of legal certainty and sustainable urban development.
For Serbia, this highlights the critical need to strengthen compliance with zoning and planning rules, ensuring that potential conflicts are addressed proactively at the planning stage, thereby reducing the likelihood of protracted court disputes and fostering a more predictable and sustainable urban environment.
Modernising daylight protection: legal proposals for Serbia
To close existing gaps and align with European practices, Serbia could adopt a five‑part framework.
Legal recognition of sunlight as a protected interest
Access to sunlight should be explicitly protected, either as a separate right or through a modernised easement regime. This would provide clear statutory criteria and reduce reliance on nuisance law. Comparative models show effective solutions: the UK enforces a “right to light”, France treats excessive overshadowing as an abnormal nuisance, and Germany and Poland combine building codes with neighbour law to set daylight standards. Similar provisions would give Serbian courts predictable benchmarks for resolving disputes.
Digital sunlight analysis in planning applications
Spatial and construction rules should include measurable daylight standards and require digital analysis during permitting. Measures could include minimum daylight hours for habitable rooms, height‑based setback requirements, limits on daylight obstruction, and the use of solar access planes (e.g. solar envelopes or angular planes) that automatically limit the height and shape of new buildings, so they do not block sunlight to neighbours during defined hours (e.g. 9:00 to 15:00 in winter). Such approaches, developed in urban planning and used in countries like Poland and the US, set sloped planes above which neighbouring buildings may not intrude. Mandatory sun path and 3D shadow studies, generated with digital tools, should form part of every application, providing early verification that projects respect solar rights. Early assessment would integrate sunlight impacts into design and reduce later conflict.
Improve procedural transparency and public participation
Protection depends on open procedures. Neighbours should be notified early when a project may affect sunlight and daylight analyses should be publicly accessible for review. These steps reflect best practice in jurisdictions where digital modelling and public participation are standard.
Enforcement and sanctions
Rules must be backed by effective remedies. Authorities should be able to impose significant fines, suspend occupancy, and order modification or removal of non‑compliant structures. Stronger inspection protocols are needed to detect deviations from approved plans. This ensures that daylight standards are enforced in practice, not only on paper.
Daylight as a matter of public interest
Daylight should be recognised as a public good essential to health and urban quality. Planning policy should protect parks, squares, and streets from permanent overshadowing. Regulations should require direct daylight in habitable rooms, following Scandinavian models. Embedding daylight within public‑interest objectives would guide urban development for the benefit of the community.
Conclusion: short‑term remedies and long‑term reform
Until comprehensive reform is adopted, the protection of access to daylight in practice remains dependent on existing mechanisms, the most effective of which are early and active participation in procedures for adopting planning documents and issuing construction permits for neighbouring parcels, as well as judicial protection, most often in the form of compensation for loss of daylight and the resulting decrease in property value. The proposed reform measures would provide clear substantive rules and standards with effective enforcement, ensuring a better balance between developers’ interests and the well-being and quality of life of neighbouring residents.
For more information, contact your CMS client partner or CMS Belgrade experts - Marija Marošan and Ivan Gazdić.
