"Subdivision: Hedges & Trees – When Covenants Override French Law"

Picture the scene: you have just bought a charming house in Saint-Paul-lès-Dax, with a sun-drenched garden. But your neighbour has planted a hedge of thujas which, as they grow, deprive you of light and whose roots threaten your terrace. You open the Civil Code, Article 673 is on your side: you can require that the branches overhanging your property be cut, and even pull up the roots that encroach. Except… the housing estate where you live has its own deed of covenants, which allows plantings up to the boundary line. So which prevails? The general law or the contract signed between neighbours?

This is precisely the question the French Supreme Court decided on 13 June 2012 (decision no. 11-18.791). And the answer is clear: Article 673 of the Civil Code is not of public policy. In other words, a housing estate's deed of covenants may derogate from it. For homeowners and property professionals, this is a game-changing decision. It reminds us that the law of housing estates is often more restrictive – or more permissive – than the general law. In this article, we will dissect this case, understand the judges' reasoning, and see what it actually means for you, whether you are an owner, tenant or professional.

But what exactly does it change? And how should you react if you face a similar situation? Follow me in this analysis, where I give you the practical keys from my over 15 years of experience in property law, particularly in the jurisdictions of Grasse and Mont-de-Marsan.

The Facts: A Story That Happens Every Day

Mr X, a homeowner in Saint-Paul-lès-Dax, is in conflict with his neighbour, Mr Y. The latter planted, several years ago, trees and shrubs along the boundary line. Over time, these plants have grown: branches overhanging Mr X's property, roots threatening the foundations of his terrace, falling leaves blocking his gutters. Exasperated, Mr X takes the case to the District Court of Dax to obtain the cutting of the branches and the removal of the roots, based on Article 673 of the Civil Code. This article provides that "any person on whose property the branches of trees, shrubs or bushes of a neighbour overhang may compel the neighbour to cut them" and that "if it is the roots that encroach, that person has the right to cut them himself at the boundary line."

But Mr Y raises a major argument: the housing estate where they both live is governed by a deed of covenants signed by all homeowners. This document stipulates that plantings are allowed up to the boundary line, with no restriction on height or distance. In other words, the contract binding the co-owners of the housing estate derogates from the general rule of the Civil Code. Mr X retorts that Article 673 is of public policy, so it cannot be avoided by agreement.

The Dax court rules in favour of Mr X, ordering the cutting under penalty. Mr Y appeals. The Court of Appeal of Pau (which covers the jurisdiction of Mont-de-Marsan) reverses the judgment: it considers that the deed of covenants is a valid agreement and that Article 673 is not of public policy. Mr X appeals to the Supreme Court. In its decision of 13 June 2012, the Supreme Court dismisses the appeal and upholds the appellate decision. It clearly states that "Article 673 of the Civil Code not being of public policy, it may be derogated from by the contractual stipulations of a housing estate's deed of covenants."

The Court's Reasoning — Explained

To understand this decision, one must grasp the distinction between rules of public policy and suppletive rules. Rules of public policy are mandatory: they cannot be derogated from by contract. For example, the prohibition on selling an unhealthy dwelling is of public policy. Conversely, suppletive rules apply by default, but the parties may set them aside by a contrary agreement. Article 673 of the Civil Code, which deals with the right to cut a neighbour's branches and roots, is a suppletive rule. Why? Because it aims to settle a neighbourhood dispute in the absence of an agreement between the parties. But if the owners have, by a contract (such as a housing estate's deed of covenants), organised their rights and obligations differently, that agreement prevails.

In this case, the judges first examined the housing estate's deed of covenants. This document, signed by all successive purchasers, has contractual value. It provides that plantings are allowed up to the boundary line. Therefore, Mr X, by buying his property, accepted this rule. He cannot later invoke Article 673 to impose additional restrictions. The Court of Appeal of Pau therefore considered that the neighbourhood disturbance invoked by Mr X was not abnormal, since it was inherent in the very existence of the plants authorised by the deed of covenants. The Supreme Court approves this reasoning: for a disturbance to be classified as abnormal, it must exceed the normal inconveniences of neighbourhood. But if the deed of covenants allows the plantings, the resulting disturbance is deemed normal.

What few people know is that the concept of abnormal neighbourhood disturbance (based on Article 1240 of the Civil Code, which requires compensation for damage caused by fault) is a subsidiary tool. In this case, Mr X had invoked an abnormal neighbourhood disturbance, but the Court of Appeal found that the disturbance was normal given the contractual clause. The Supreme Court confirms: since the deed of covenants authorises the plantings, the disturbance cannot be classified as abnormal. This decision is therefore a confirmation of previous case law, not a reversal. It reminds us that the law of housing estates is primarily contractual law, which may derogate from the general rules of the Civil Code, unless those rules are of public policy.

What This Changes for You — Practically

If you own a house in a housing estate, this decision has direct implications. It means you cannot rely on Article 673 of the Civil Code if your deed of covenants provides different rules. For example, if the deed of covenants allows hedges of 2 metres in height on the boundary, you cannot require your neighbour to reduce them to 1.50 metres, even if Article 673 would allow it under general law. However, if the deed of covenants is silent or refers to the general law, Article 673 applies.

For tenants, it is simpler: you are not bound by the housing estate's deed of covenants (unless the lease mentions it). You can therefore invoke Article 673 against the neighbour, but be careful: your landlord is bound by the deed of covenants. If the neighbour relies on that document, your action could be countered. undefined, I have encountered cases in Dax where tenants complained about tree branches from a neighbouring housing estate: without the owner's consent, the procedure is more complex.

For buyers, the advice is clear: before buying a property in a housing estate, read the deed of covenants carefully. Check the rules on plantings, fences, constructions. Do not rely solely on the Civil Code! A concrete example: in Saint-Paul-lès-Dax, a housing estate may allow tall trees 2 metres from the boundary, whereas the general law requires a distance of 2 metres for trees over 2 metres tall. If you buy without checking, you could end up with permanent shade with no recourse.

Finally, for property professionals (agents, developers, notaries), this decision underscores the importance of drafting deeds of covenants. If you wish to impose restrictions stricter than Article 673, you must state this clearly. For example, prohibit any planting within 1 metre of the boundary. But be careful: these clauses must be lawful and not infringe public policy.

Four Tips to Avoid This Type of Dispute

• Consult the deed of covenants before any purchase or planting. Before buying a property in a housing estate, ask your notary to provide you with the deed of covenants and the co-ownership regulations (if it is a co-ownership). Read the articles on plantings, fences and constructions. If you are already an owner, obtain this document from the management company or the Free Owners' Association.
• Respect the distances and heights provided. If the deed of covenants imposes a minimum distance (e.g., 1 metre for shrubs, 2 metres for trees), respect it. Even if Article 673 is less demanding, the contract prevails. Non-compliance may lead to legal action and damages.
• In case of dispute, first check the contractual basis. Do not rush to Article 673. Analyse the deed of covenants: what does it say exactly? If it authorises the disputed plantings, your action will be doomed to failure. On the other hand, if it is more restrictive, you can rely on it.
• Mediation before litigation. Neighbourhood disputes are often long and costly. A conventional or judicial mediation can help reach an agreement without going to court. In Mont-de-Marsan, the judicial court offers information sessions on mediation. It is often faster and cheaper than a lawsuit.

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

Further Analysis: Related Case Law and Developments

This decision is part of consistent case law. The Supreme Court had already ruled, in a decision of 13 March 2008 (no. 07-10.421), that the rules of a housing estate may derogate from Article 673. More recently, in a decision of 18 November 2020 (no. 19-17.262), it specified that the deed of covenants must be interpreted strictly: in case of doubt, the general law applies. In other words, if the deed of covenants is ambiguous, Article 673 regains its force.

The trend of the courts is therefore to give binding force to deeds of covenants, while requiring clear and precise drafting. For the future, we can expect disputes to focus more on the interpretation of clauses than on their validity. Professionals must therefore be vigilant when drafting these documents. Finally, remember that abnormal neighbourhood disturbance remains a subsidiary remedy: if the deed of covenants does not cover the situation (e.g., noise nuisance), Article 1240 of the Civil Code may be invoked.

What You Absolutely Must Remember

Here is a 4-point checklist on what to do if you face a planting conflict in a housing estate:

1. Identify the applicable legal basis: the housing estate's deed of covenants prevails over Article 673 of the Civil Code. Check its content.
2. Characterise the disturbance: to act on the basis of abnormal neighbourhood disturbance (Article 1240), you must demonstrate a disturbance exceeding normal inconveniences. If the deed of covenants allows the plantings, the disturbance is presumed normal.
3. Consult a lawyer lawyer: before taking legal action, have your situation analysed by a professional. An initial consultation can save you unnecessary costs.
4. Negotiate or mediate: in 80% of cases, an amicable agreement is possible. Mediation is often more effective than a lawsuit.

In summary: Article 673 is not of public policy. Your housing estate's deed of covenants can therefore set it aside. Before invoking the law, read your contract. And if you are in conflict, do not hesitate to contact me for an analysis of your case.

Are you 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 →