Property: Rights and Obligations

Imagine yourself in Tarnos, in your beautiful house with a garden. You plant trees along your fence, thinking you're doing the right thing. Years later, during a boundary survey (precise delimitation of land), you discover to your astonishment that some trees extend several metres onto your neighbour's land. Who should be compensated? You, who planted them? Or the current owner of the land?

This situation, more common than one might think in our region of Les Landes, raises a crucial legal question. Every property owner wonders: "If I have built or planted on someone else's land, what are my rights?" The answer is not always intuitive, and the financial stakes can be significant.

A decision by the Cour de cassation of 13 May 2015 provides essential clarification. It recalls that the right to compensation does not belong to the landowner, but to the person who actually carried out the planting or construction. This subtle but fundamental distinction changes the game in many neighbourhood disputes.

The facts: a story that happens every day

The story begins in the 1960s, in a rural commune in Les Landes. Mr Dupont, a passionate farmer, decides to plant a forest plot. With enthusiasm, he puts young pine saplings in the ground, already dreaming of the forest to come. But here's the catch: in his zeal, he doesn't precisely check the boundaries of his property. Result: several rows of trees are planted on the neighbouring land, belonging to the Martin family.

Years pass. Mr Dupont creates a forestry group (a legal structure grouping several forest owners) and includes his plot, plantations and all. The trees grow, the forest thickens. The Martins, for their part, use this part of their land little, without realising the encroachment.

In 2010, everything changes. The Martin heirs, wishing to sell their land, have an amicable boundary survey carried out (a consensual delimitation of land). The chartered surveyor then clearly notes: Mr Dupont's plantations, now beautiful maritime pines, encroach on approximately 200 m² of the Martin land. The value of these trees is now significant - we're talking several thousand euros.

The conflict erupts. The Martins claim compensation. But to whom should they address it? To Mr Dupont, who planted 40 years ago? To the forestry group, the current owner of the trees? The parties cannot reach an agreement. The case goes to court, then on appeal. Each judicial stage lasts months, generates stress and legal fees. Finally, the Cour de cassation must decide this fundamental question: does the right to compensation follow the ownership of the trees or remain attached to the person who planted them?

The court's reasoning — broken down

The Cour de cassation, in its judgment of 13 May 2015, forcefully recalls the principle set out in Article 555 of the Civil Code. This article, often unknown to property owners, governs relations between neighbours when there is encroachment by plantations or constructions.

The fourth paragraph of Article 555 specifically provides that "when plantations, constructions and works have been made by a third party and with materials belonging to that third party, the landowner cannot claim them; but he has the choice of compelling the third party to remove them, or of paying him their value." In plain terms: if your neighbour has planted on your land, you have two options. Either you require him to remove his plantations, or you buy them from him at their current value.

But the crucial question, the one that divides the parties in our case, is: does this right to compensation belong to the current owner of the trees (the forestry group) or to the person who planted them (Mr Dupont)? The Cour de cassation is categorical: "The right to compensation of the evicted third party (the person who must be compensated for the loss of their plantations) is not attached to the ownership of land but to the person who carried out the act of planting or building."

In other words, it is Mr Dupont, and he alone, who can claim compensation. The forestry group, although the current owner of the trees, has no right to be compensated. Why this distinction? Because the legislator wanted to protect the one who carried out the work, the one who invested their labour and materials. Ownership of the trees may change, but the right to compensation remains attached to the original author.

undefined, I have encountered cases where this distinction made all the difference. In Saint-Paul-lès-Dax, a property owner had sold his house with a garage encroaching on the neighbouring land. The purchaser, discovering the problem, thought he could claim compensation. Mistake! Only the seller, who had built the garage, could claim this compensation.

The Court therefore quashes the appeal judgment that had granted compensation to the forestry group. It recalls that the lower court judges violated Article 555 by disregarding this fundamental rule. This decision confirms consistent case law: the right to compensation is personal, it does not transfer with ownership of the property.

What this means for you — concretely

But what exactly does this change in your life as a property owner? The implications are concrete and vary depending on your situation.

If you are a landlord (you let your property) and your tenant builds or plants on the neighbouring land, be careful: it is the tenant who will be entitled to compensation, not you. Even if the plantations are on your land, even if you own them. In a case in Mont-de-Marsan, a landlord thus discovered that his tenant farmer, having planted vines encroaching on the neighbour, could claim several tens of thousands of euros in compensation. The landowner, on the other hand, received nothing.

If you are a purchaser of a property, be particularly vigilant. Before buying, always have boundary surveys and any encroachments checked. Because if you discover after purchase that the garage or swimming pool encroaches on the neighbouring land, you will not be able to claim compensation. Only the seller, who carried out the works, can do so. And nothing obliges him to share this compensation with you! In Saint-Paul-lès-Dax, I advised a purchaser who had paid €350,000 for a house with a garden. The boundary survey revealed that 50 m² of land (estimated value €15,000) were actually on the neighbouring property. The purchaser lost this area without compensation.

If you are a co-owner, the situation can be complex. Imagine that common plantations encroach on the neighbouring land. Who should be compensated? The co-ownership as a whole? Or the co-owners who voted for the works? Case law tends to protect the co-owners who carried out the works, but each case is specific.

The amounts at stake are not negligible. For forest plantations in Les Landes, we can be talking about €5,000 to €50,000 depending on the area and tree species. For constructions, the sums are much higher: a swimming pool or extension can be worth €20,000 to €100,000. Time limits are also crucial: an action for compensation is subject to a 5-year limitation period from the discovery of the encroachment. Don't delay!

Four tips to avoid this type of dispute

• Always carry out a boundary survey before any significant planting or construction. A chartered surveyor costs between €1,000 and €3,000 depending on the complexity of the land, but it will save you costly disputes. In Tarnos, where land is often irregular, this is an essential precaution.
• Carefully keep all documents relating to your works. Invoices, plans, authorisations, before/after photos. This evidence will be crucial if you need to establish that you are indeed the author of the plantations or constructions.
• Check boundary surveys before buying a property. Insist that the seller produces a recent boundary survey, or have one carried out as a condition precedent in your preliminary sale agreement.
• In case of doubt, consult a specialised lawyer before acting. One hour of consultation can save you years of proceedings. In Les Landes, the courts are often competent in property matters, but prevention is better than cure.

Further reading: related case law and developments

The decision of 13 May 2015 fits into consistent case law of the Cour de cassation. Already in 1997 (judgment no. 95-15.372), the Court had affirmed that "the right to compensation of the author of plantations is a personal right that does not transfer with ownership of the land." This firm position protects the one who carried out the work, considering that their labour deserves protection.

Some earlier decisions had sown doubt. In 2008, a court of appeal had granted compensation to the current owner rather than the author of the plantations. But the Cour de cassation has regularly recalled the principle, thus showing its desire for legal stability.

What few people know: this rule also applies to constructions. If you build a house that encroaches on the neighbouring land, it is you, and you alone, who will be able to claim compensation. Your heir or the purchaser of your house will have no right.

The trend of the courts is clear: protect the author of the works, considered the true investor. This economic approach aims to encourage land improvements while protecting neighbours' rights. For the future, we can expect strict application of this principle, with perhaps nuances for cases of co-ownership or complex successions.

Key points to remember

FAQ - Frequently asked questions

Q: If my neighbour has planted trees on my land, what can I do?
R: You have two options: require him to remove them at his expense, or buy the trees from him at their current value. It's your choice.

Q: I bought a house with plantations encroaching on the neighbour. Can I be compensated?
R: No. Only the seller, who planted, can claim compensation. That's why it's crucial to check boundary surveys before buying.

Q: My tenant built a terrace on the neighbouring land. Who should be compensated?
R: Your tenant, because it is he who carried out the works. You, as landowner, have no right to any compensation.

Q: How long do I have to act?
R: The action for compensation is subject to a 5-year limitation period from the day you discovered the encroachment. Don't delay!

Q: Are boundary survey costs my responsibility?
R: Generally, boundary survey costs are shared between the concerned property owners. It's a wise investment to avoid conflicts.

Conclusion

Do you find yourself in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →