Wind Power under Hungarian Private Law: A Case Note (Norsk Retstidenda 2011)

Abstract

Abstract: The case decided by the Norwegian Supreme Court put to test the 'classical' interests linked to the right of ownership and therewith, in fact, inspected the limits of rights in real property. While approaching the case under Hungarian private law, at first instance the determination of 'wind' in terms of private law is conducted. I argue that 'wind' should rather not be considered a natural force under the extended indirect definition of 'thing' provided in section 94(2) Hungarian Civil Code. Another issue being investigated is the content and thereunder the vertical limits of ownership in land. The conclusion is that there is no declared vertical limitation for the entitlements deriving from the right of ownership in immovable property. With regard to legal instruments in Hungarian private law protecting the interest of the adjacent real property's owner, the claim protecting against the disturbance of ownership (negatoria in rem actio) and a claim on the ground of the so-called general clause of neighbour law, the latter as in its application in conjunction with the protection of possession and non-contractual liability is ascertained. On the basis of the analysis of the case law on the general clause of neighbour law, I argue that this provision provides enough space for the Court to consider an eventual 'interest related to wind' of the owner of the neighbouring real property, where the focus is on the interest's monetary valuation as connected to the decrease in market value of the affected real property.