Encroachment and Penalty Payment: Judge Cannot Reduce Ordered Demolition

Imagine: you own a house in Bagnols-sur-Cèze, with a garden you maintain with care. One day, you find that your neighbour has built a wall encroaching a few centimetres onto your land. You start proceedings, and the court orders demolition under a penalty payment. The neighbour stalls, the demolition is only partial. You ask the judge to enforce the penalty payment, but your neighbour argues that the remaining encroachment is minimal and that you suffer no serious harm. Can the judge reduce the penalty debt or modify the demolition obligation?

The Cour de cassation answered this question in a judgment of 10 November 2016 (n° 15-21.949). It ruled: the enforcement judge can only verify whether the demolition obligation has been performed, and cannot adapt it on the grounds that the disturbance is slight. A decision that protects property owners who are victims of encroachment, but imposes absolute vigilance in the execution of court decisions.

In this article, I explain the facts, the Court's reasoning, and what you must remember to protect your rights, whether you are an owner, tenant, or property professional in Vauvert or elsewhere.

The facts: a story like many others

Mr X, owner of a house in Bagnols-sur-Cèze, sued his neighbour, Mr Y, before the tribunal de grande instance of Nîmes. Why? Because Mr Y had built a wall and a terrace that encroached onto Mr X's property. The court, by a final judgment, ordered the demolition of these constructions under a penalty payment of 50 euros per day of delay. The judgment set a two-month deadline for performance.

Mr Y began the works but did not complete them fully. A bailiff's report revealed that several points of encroachment remained: a boundary wall still in place over 15 cm, a rainwater drainage pipe crossing Mr X's property, and an unreinforced rock fill. Mr X then applied to the enforcement judge to enforce the penalty payment, i.e., to have it noted that Mr Y had not fully performed the decision and to demand payment of the sums due (50 euros per day from the expiry of the deadline).

Before the judge, Mr Y argued that the residual encroachment was minimal, that it caused no serious disturbance to Mr X, and that Mr X did not demonstrate any actual loss. He asked the judge to reduce the penalty payment, or even cancel it. The Nîmes Court of Appeal ruled in favour of Mr X: it enforced the penalty payment in the sum of 12,000 euros, disregarding the argument of slight disturbance. Mr Y appealed to the Cour de cassation.

The court's reasoning — explained

The Cour de cassation dismissed Mr Y's appeal. It relied on Article L. 131-4 of the Code of Civil Enforcement Procedures (CPCE). This article provides that the enforcement judge may enforce the penalty payment taking into account the debtor's conduct and the difficulties encountered. But attention: he cannot modify the obligation itself. In other words, if a final decision orders a demolition, the judge cannot decide that a partial demolition is sufficient, or that the penalty is too heavy because the neighbour does not suffer enough.

The Court clarified that the enforcement judge's sole mission is to verify whether the demolition obligation has been performed. If it has not, in whole or in part, he must enforce the penalty. He cannot substitute himself for the trial judge (who made the initial decision) to reassess the extent of the encroachment or the seriousness of the disturbance. In this case, the Court of Appeal had found that encroachment points persisted, despite Mr Y's partial works. Therefore, it was bound to enforce the penalty.

An important point: the Court explicitly rejected the argument of slight disturbance. It does not matter that Mr X suffers only minimal harm (a few centimetres of wall, a pipe...). The demolition obligation was ordered; it must be fully performed. The judge cannot reduce the penalty debt on the grounds that the disturbance is small. This is a strict application of the principle of res judicata (a final decision binds everyone).

This decision confirms consistent case law: the enforcement judge is a judge of enforcement, not a trial judge. It is harsh for debtors who hope to get off lightly by invoking absence of harm. It protects creditors of a demolition obligation, who do not have to prove harm to obtain payment of the penalty.

What this means for you — practically

For the property owner victim of encroachment: you can sleep easy. If you obtain a court order for demolition under penalty, and your neighbour does not fully perform, you can apply for enforcement without having to show that the residual encroachment causes you particular harm. For example, in Vauvert, an owner obtained demolition of a mispositioned party wall. The neighbour demolished three-quarters but left 10 cm of foundation. The judge enforced the penalty at 8,000 euros, despite the neighbour's argument that the 10 cm bothered no one. The Cour de cassation upheld this.

For the property owner ordered to demolish: be very careful. Partial performance is not enough. You must fully perform the obligation, without questioning its merits. If you think the encroachment is minimal or your neighbour is abusing their rights, you must challenge the initial decision through appeals (appeal, cassation), not hope for a reduction at the enforcement stage. The penalty can quickly reach high amounts: 50 euros per day for 6 months equals 9,000 euros, not including court costs.

For the buyer or co-owner: if you buy a property, check whether there is any pending court decision or unenforced penalty. A penalty is a debt personal to the debtor, but it can affect the property's value if the seller is condemned. In co-ownership, if a co-owner encroaches on common parts, the syndic can obtain a demolition order. This decision confirms that the enforcement judge cannot reduce the penalty on grounds of slight disturbance, strengthening the effectiveness of orders.

For the property professional (agent, notary, developer): be clear with your clients. Once a demolition order is final, the penalty is a sword of Damocles. Better to perform quickly and fully. If you represent a seller, disclose any ongoing penalty; if you represent a buyer, demand proof of full performance.

In practice, the deadline for performance is often 2 to 6 months. After that, the penalty accrues. The rate can vary: 20 to 200 euros per day depending on severity. The total amount may be capped or not. Here, the penalty was 50 euros per day uncapped, giving 12,000 euros for about 8 months of partial delay.

Four tips to avoid this type of dispute

• Before building, get a land survey. A surveyor precisely defines your property boundaries. It is an investment (800 to 1,500 euros) that avoids years of litigation. In Bagnols-sur-Cèze, a joint survey with your neighbour is strongly recommended before any fencing or building project.
• In case of dispute, prefer conciliation. Before going to court, try mediation or conciliation. A friendly settlement may provide for compensation rather than demolition, avoiding penalty costs. But caution: once a decision is made, the penalty is fully due.
• Fully perform court decisions. If you are ordered to demolish, do not do things by halves. Have a bailiff's report made after works to prove everything has been removed. Otherwise, you risk paying the penalty for the unperformed part, however minimal.
• Keep all supporting documents. Invoices for works, photos, bailiff reports, letters. This will allow you to demonstrate good faith and difficulties encountered, which may influence the judge on the amount of the penalty (but not on its principle).

Further reading: related case law and developments

This decision is part of a consistent line of the Cour de cassation. In a judgment of 8 July 2009 (n° 08-16.203), the Court had already held that the enforcement judge cannot modify the obligation to do something pronounced by the trial judge. More recently, in a judgment of 4 May 2017 (n° 16-14.867), it recalled that the enforcement judge cannot reduce the penalty on the grounds that the creditor delayed in seeking enforcement.

One nuance: the judge may adjust the penalty according to the difficulties of performance encountered by the debtor (Article L. 131-4 CPCE). For example, if demolition requires complex works or a building permit, the judge may reduce the amount or postpone the start date. But he cannot remove the obligation itself.

The trend of the courts is therefore strict: once a demolition obligation is ordered, its performance must be total. Arguments based on absence of disturbance are ineffective. This reinforces the credibility of court decisions and protects owners' rights.

Key points to remember

1. The enforcement judge can only note performance or non-performance. He cannot reduce the demolition obligation, even if the residual encroachment is minimal.
2. Absence of serious harm is not an argument. The disturbance may be slight, the penalty is due as long as the obligation is not fully performed.
3. Perform fully and quickly. Partial performance exposes you to a penalty for the unperformed part, without possibility of discussion.
4. If you are a victim of encroachment, do not hesitate to ask for a deterrent penalty. Judges frequently impose it, and the Cour de cassation protects it.
5. Keep evidence of performance. A bailiff's report after works is the best protection against a new enforcement application.

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