Right of Superficies: Beware, You Do Not Own the Ground Beneath Your Feet

Imagine for a moment: you own a house in Colomiers, and you discover that the party wall you thought you shared with your neighbour is actually built on a plot of land whose ground belongs to the neighbouring co-ownership. You want to regularise the situation by acquiring the party wall status (the right to lean on that wall). But to whom must you pay? To the owner of the wall or to the owner of the ground? This is precisely the question put to the Court of Cassation in 1975. And the answer is rather surprising: the right of superficies (the right to build on another's ground) gives you no right over the ground itself. In short, even if you own the building, the land remains with its original owner.

This decision, handed down on 14 January 1975, concerns a co-owned property where the ground is a common part. The owner of a neighbouring plot (No. 96 avenue Victor-Hugo) wanted to acquire the party wall status of a wall that formed part of the private parts of a unit. But the court had to decide: to whom should the portion of the price corresponding to the ground be paid? To the co-owner of the unit (who has a right of superficies) or to the co-owners' association (owner of the ground)?

In other words, this case perfectly illustrates the distinction between the right of superficies (which concerns what is built) and the right of ownership of the ground. And the practical consequences are significant, whether you are an owner, a tenant or a property professional. So, how should you react if you are affected? Let us decipher this landmark decision together.

The facts: a story that happens every day

Let us go back to 1975. A co-owned property straddles several plots. The ground of the property is a common part, meaning it belongs to all the co-owners, represented by the co-owners' association. On this ground, a wall separates the co-ownership from a neighbouring plot, Unit A. This wall is itself a private part: it belongs to a particular co-owner, Mr X, who benefits from a right of superficies (the right to use the ground to build and own the wall).

On the other side of the wall is Mr Y, owner of a contiguous plot at No. 96 avenue Victor-Hugo. Mr Y wishes to acquire the party wall status of this wall, that is, the right to use it as his own and to lean on it to build or enclose his own land. In return, he must pay compensation, which includes half the value of the wall and half the value of the ground on which it rests.

But here is the issue: Mr X (the co-owner of the wall) believes that the entire price should go to him, since he is the owner of the wall. The co-owners' association, for its part, claims the share corresponding to the ground, because the ground is a common part. The dispute goes all the way to the Court of Cassation. The judges must determine who, between the co-owner and the association, is entitled to the portion of the price representing half the market value of the ground.

What few people know is that this type of dispute is common, especially in older co-ownerships where the boundaries between private and common parts are blurred. In Pamiers, for example, I came across a case where a garage owner had built a canopy on a party wall without asking who owned the ground. The 1975 decision helped avoid a similar dispute by clarifying the rules.

The reasoning of the court — dissected

The Court of Cassation, in its judgment of 14 January 1975, ruled in favour of the co-owners' association. Its reasoning is clear: the right of superficies does not confer on its holder any right of ownership over the ground. Consequently, the co-owner of the wall is not the owner of the ground under the wall; it is the association, as representative of the co-owners, that holds the ownership of the ground (common part).

Applying Article 552 of the Civil Code (which provides that ownership of the ground carries with it ownership of what is above and below) and the rules on party walls (Articles 653 et seq.), the transfer of party wall status of a wall entails the transfer of a portion of the ground corresponding to the footprint of the wall. Since this ground is a common part, only the association can dispose of it. Thus, the portion of the transfer price representing half the market value of the ground must go to the association, not to the co-owner of the wall.

In other words, even though Mr X owned the wall (by virtue of his right of superficies), he did not own the ground. The party wall status is acquired over both the wall and the ground; the price must therefore be shared between the owner of the wall (Mr X) and the owner of the ground (the association).

This decision confirms a consistent line of case law: the right of superficies is a real property right (a right over a thing) distinct from ownership of the ground. It follows the maxim "superficies solo cedit" (what is built on the ground belongs to the owner of the ground), but mitigates it by recognising an autonomous right of superficies. However, it reminds us that this right does not absorb the ownership of the ground.

undefined that the holder of a right of superficies (for example, a co-owner with a unit that includes a private wall) cannot consider himself the owner of the ground under that wall. He cannot therefore transfer that ground alone to a third party. This is an essential distinction, often overlooked by owners.

What this means for you — practically

If you are a co-owner of a unit including a private wall built on common ground, you cannot transfer the party wall status of that wall without the association's consent. And above all, you will not receive the entire price: the share corresponding to the ground goes to the co-ownership. For example, if the market value of the ground under the wall is estimated at €10,000, the association will receive half, i.e., €5,000, and you the other half for the wall.

If you are the owner of a neighbouring plot wishing to acquire the party wall status of a wall on the boundary of a co-ownership, you must check who owns the ground. Do not pay only the co-owner of the wall: require an agreement from the association, otherwise the transfer may be challenged. undefined, I encountered a case in Pamiers where an owner paid €8,000 to a co-owner for a wall, without the association being informed. Result: the association claimed the share of the ground (€3,500) in court, and the owner had to pay twice.

If you are a developer or property professional, be vigilant when acquiring real rights over buildings in a co-ownership. The right of superficies is a useful tool, but it does not relieve you of the ownership of the ground. When drafting deeds, clearly distinguish what relates to the building and what relates to the land.

Finally, for tenants, this decision has less direct impact, but it highlights the importance of checking title deeds before signing a lease. If your landlord does not own the ground, his rights may be limited.

Four tips to avoid this type of dispute

• Check the title deeds and the co-ownership regulations: before any acquisition of party wall status or rights over a wall, consult the unit's title deed and the co-ownership regulations. They indicate whether the wall is a private or common part, and who owns the ground.
• Obtain a written agreement from the association: if the ground is a common part, the association must authorise the transfer of party wall status at a general meeting, by the required majority. Do not rely on a verbal agreement from the co-owner of the wall.
• Have the value of the ground assessed separately: to allocate the price, use a notary or a property expert to assess the market value of the bare ground and that of the wall. This will avoid later disputes.
• Consult a lawyer lawyer before signing anything: a professional can analyse the situation and advise you on the steps to take. The cost of a consultation is negligible compared to the risks of litigation.

Further reading: related case law and developments

This 1975 decision is part of a consistent line of case law. Already in 1965, the Court of Cassation had affirmed that the right of superficies is a right distinct from ownership of the ground (Civ. 3e, 8 April 1965). Later, in 1998, it specified that the holder of a right of superficies may build on another's ground, but does not become the owner of the ground (Civ. 3e, 18 February 1998, No. 96-15.074).

The trend is therefore clear: the dissociation between ground and building is recognised, but it must not lead to confusion. The courts are strict about respecting the rights of the ground owner. Today, with the development of building leases and real rights of enjoyment, this issue remains relevant.

For the future, we can expect case law to maintain this distinction, especially in co-ownerships where ground management is collective. Property professionals must incorporate this rule into their practices, otherwise they risk nullities or actions for recovery of undue payments (restitution of sums improperly received).

What you absolutely must remember

Practical FAQ:

• What is the right of superficies? It is the right to own buildings on another's ground. It gives you a right over the building, but not over the land.
• Can I buy the party wall status of a wall in a co-ownership without the association's consent? No, because the ground is common. You must obtain authorisation from the general meeting of co-owners.
• To whom should I pay the price for the party wall status? The price must be divided between the owner of the wall (the co-owner) and the owner of the ground (the association), in proportion to their rights.
• What if I have already paid only the co-owner? You may have to pay again to the association. Consult a lawyer to negotiate or take legal action.
• Does this rule apply to individual houses? Yes, if the ground of a party wall does not belong to the wall owner (for example, in the case of an easement or a right of superficies).

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