Property Dispute: Solution

Imagine: you have just bought a beautiful house in L'Île-Rousse, with a garden overlooking the maquis. You have an amicable boundary survey carried out and discover that your neighbour, who built his swimming pool last year, has encroached 50 centimetres onto your land. What can you do? The neighbour tells you he was in good faith, that he believed the boundary was further away. But is that sufficient for him to keep his pool? The answer is no, and the Court of Cassation clearly stated this in a judgment of 8 December 1971 (no. 70-13.550).

This landmark decision addresses a question every landowner asks: can a builder who encroaches on neighbouring land invoke his good faith to avoid demolition? The Court of Cassation sets out a simple rule: to be in good faith within the meaning of Article 555 of the Civil Code (which governs constructions on another's land), the builder must possess the land under a title transferring ownership (sale deed, gift, etc.) whose defects are unknown to him. In short, if you build without any right to the land, you are in bad faith, except in exceptional circumstances.

In this article, we will analyse this decision, understand what it means in practice for owners, tenants and property professionals, and give you practical tips to avoid this type of dispute.

The Facts: A Common Story

The case involved two neighbours in Furiani, Haute-Corse. Mr Manuel built his house. Problem: he encroached on Mr Vivancos's land. Vivancos sued Manuel to have the encroaching structures removed. Before the Court of Appeal, Manuel invoked his good faith: he did not know he was building on another's land. The Court of Appeal ruled in his favour and dismissed Vivancos's claim on the ground that he had not proved Manuel's bad faith.

But Vivancos did not give up: he appealed to the Court of Cassation. His argument was unanswerable: Manuel did not rely on any title of ownership to the land he was occupying unlawfully. He could not, therefore, be in good faith. The Court of Cassation agreed and quashed the Court of Appeal's decision.

What is interesting is the progression: first a local decision favourable to the builder, then a reversal on appeal. This shows that lower court judges can be wrong, and that it is essential to know the precise rules on good faith. In my practice, I have seen cases where a landowner, after losing at first instance, won on appeal thanks to strong arguments on the concept of title.

The Court's Reasoning - Analysed

The Court of Cassation relied on Article 555 of the Civil Code, which distinguishes between a builder in good faith and one in bad faith. The text provides that if the landowner chooses to keep the construction, he must reimburse the builder in good faith either the cost of materials and labour or the added value to the land. In contrast, the builder in bad faith is only entitled to reimbursement for materials, and even then, without labour. In other words, good faith entitles the builder to much more favourable compensation.

But what is good faith? The Court of Cassation gives a strict definition: the builder is in good faith if he possesses the land under a title transferring ownership (an act that transferred ownership to him, such as a sale or gift) whose defects are unknown to him. Example: you buy land, you build, and it is later discovered that the seller was not the true owner. You are in good faith because you had a title, even if defective. On the other hand, if you build without any title, you cannot claim good faith, even if you were unaware of the exact boundary.

Note, however: the Court does not say that a builder without title is always in bad faith. But it reverses the burden of proof: it is not for the landowner to prove the builder's bad faith, but for the builder to prove his good faith, and to do so he must show that he had a title. This is an implicit reversal of earlier case law that required the landowner to prove bad faith.

What few people know: this rule also applies to plantings and constructions made by a tenant or usufructuary. A tenant who builds without the owner's permission is presumed to be in bad faith, unless he proves a title.

What This Means for You - Practical Implications

If you are a landowner and a neighbour encroaches on your land, this decision gives you a weapon: you do not have to prove his bad faith, it is for him to prove his good faith by showing a title to the disputed plot. In practice, this means that demolition is almost automatic if the neighbour has no written right to the strip of land.

If you are the one who built, do not think your ignorance is enough. You must check the boundaries of your property before building. A prior boundary survey is your best protection. Example: in Furiani, if you buy land and build a house, then discover the cadastral map is wrong and you are encroaching on the neighbour's land, you can rely on your title (the sale deed) to prove your good faith, provided the error was unintentional.

For property professionals (developers, notaries, estate agents), this decision highlights the importance of checking titles and carrying out systematic boundary surveys. A developer who builds a housing estate without rigorous boundary surveys risks costly demolition claims.

In the context of rising property prices in Corsica, even a minor encroachment can be worth a lot. Imagine: in L'Île-Rousse, a strip of 10 m² can be worth several tens of thousands of euros. Demolishing a swimming pool or wall can cost between €5,000 and €20,000, not including legal fees and damages.

Four Tips to Avoid This Type of Dispute

• Have your land surveyed before any construction. A boundary survey is the only way to know the exact boundaries. It costs between €1,000 and €3,000 depending on the area, but it is an investment that saves you much more costly litigation.
• Keep all your title deeds and notarial documents safe. In the event of a dispute, your title will be key to establishing your good faith. Store them in a safe place and digitise them.
• Before buying land, check the existing boundary survey. Ask the seller for the boundary survey report. If it does not exist, insist that one be carried out before the sale, or include a suspensive condition.
• If you discover an encroachment, do not delay in taking action. The limitation period for a demolition claim is 30 years from construction. But the longer you wait, the harder it will be to prove the facts. Send a recorded delivery letter to the neighbour and consult a specialist lawyer.

Further Reading: Related Case Law and Developments

This 1971 decision is constantly cited by the Court of Cassation. For example, in a judgment of 3 November 2011 (no. 10-25.833), it held that a builder who obtained planning permission but had no title to the land was not in good faith. Planning permission is not a title of ownership.

Thus, the trend is towards increased protection of the landowner. The courts are becoming stricter on the concept of good faith. However, note that the Court of Cassation admits exceptions in very specific cases, such as common error (e.g., a cadastral error acknowledged by both parties). But these cases are rare.

In the future, it is possible that case law may evolve towards taking into account subjective good faith (the builder's state of mind) even without a title, but for now, the rule remains clear: no title, no good faith.

Checklist Before Taking Action

• Question: Can I demolish an encroaching structure without waiting for a court order?
  Answer: No, demolition must be ordered by a judge, unless there is an amicable agreement. Any unilateral demolition may expose you to damages.
• Question: What if my neighbour built without title and refuses to demolish?
  Answer: Consult a lawyer to start legal proceedings. You can seek demolition under a penalty payment.
• Question: Can I get compensation if I am a builder in good faith?
  Answer: Yes, if you are in good faith (valid title), you can get reimbursement for materials and labour, or the added value to the land, at the owner's choice.
• Question: What are the time limits for taking action?
  Answer: The limitation period for a demolition claim is 30 years. But it is advisable to act quickly to facilitate proof.
• Question: Can a tenant be considered a builder in good faith?
  Answer: No, unless he has a title (e.g., a lease with permission to build). Otherwise, he is presumed to be in bad faith.

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