2 cm Encroachment: Total Demolition Not Automatic (French Supreme Court, 3rd Civil Chamber, 10 Nov. 2016)

Imagine: you own a house in Dieppe, and your neighbour builds a party wall. The work progresses, and one day you realise that the wall protrudes 2 centimetres onto your land. 2 cm is not much, but it is your property. What to do? Demand the complete demolition of the building? Or simply the planing down of that small protrusion?

This question was decided by the French Supreme Court on 10 November 2016 (appeal no. 15-25.113). It holds that the owner of the encroached land does not have an absolute right to total demolition: if the encroachment can be removed by a less drastic solution, such as planing, the judge must consider it. In other words, proportionality applies.

In short, this decision protects good-faith builders against excessive demands, while guaranteeing the neighbour the cessation of the encroachment. But be careful: it all depends on the facts. Let's delve into the details.

The facts: a story that happens every day

Mr and Mrs P. own a plot in the Rouen area. Their neighbours, company X, built a building immediately adjacent to the boundary line. At the end of the works, a bailiff's report revealed that the building's wall encroached 2 centimetres onto the P.'s land. The encroachment was minimal, but real.

Mr and Mrs P. sued company X to obtain the total demolition of the building. They relied on the right of ownership (Articles 544 and 545 of the Civil Code): no one can be forced to give up their property, and any encroachment, even minimal, justifies demolition. Company X, for its part, proposed a technical solution: plane the wall to remove the 2 cm in dispute, without touching the rest of the building.

The Rouen Court of Appeal ruled in favour of the P.'s and ordered total demolition, considering that the encroachment was established and that the expert's considerations about simple planing were irrelevant. Company X appealed to the Supreme Court. Twist: the Supreme Court quashed the judgment, on the grounds that the appeal judges had not considered whether planing could put an end to the encroachment.

The reasoning of the court — dissected

The Supreme Court relied on Articles 544 and 545 of the Civil Code. Article 544 defines the right of ownership as 'the right to enjoy and dispose of things in the most absolute manner, provided that no use is made of them that is prohibited by laws or regulations'. Article 545 provides that 'no one may be compelled to transfer his ownership, except for the public good and upon just and prior compensation'.

Until this decision, consistent case law held that any encroachment, even tiny, gave rise to a right to demolition of the structure, without the judge being able to substitute another measure. But here, the High Court qualifies: it recalls that the owner of the encroached land is entitled to cessation of the encroachment, but not necessarily to total demolition if a less drastic measure (such as planing) can restore the integrity of the land.

What few people know is that the Supreme Court here applies a proportionality test, inspired by the European Convention on Human Rights (Article 1 of Protocol No. 1). In clear terms, it tells the lower courts: 'You cannot order the destruction of a structure without asking whether there is a less harmful alternative for the builder, provided the encroachment is minimal and easily remedied.'

In my practice, I have encountered cases where the encroachment was a few centimetres and the neighbour demanded the demolition of an entire garage. This decision helps avoid disproportionate solutions, while protecting the rights of the aggrieved owner.

What this means for you — practically

For the owner whose land is encroached: You can still demand cessation of the encroachment, but not necessarily total demolition. If the encroachment is minimal (a few centimetres) and a simple technical solution exists (planing, moving a fence), the judge may impose that solution. You will therefore need to demonstrate that planing is insufficient or impossible. Tip: have a bailiff's report and a technical expert assessment done to evaluate the extent of the encroachment.

For the builder (building owner): You have a strong argument: if the encroachment was unintentional and you propose a proportionate remedial solution, you can avoid total demolition. In Le Havre, a property developer saved an entire building by demonstrating that planing 3 cm of the wall was sufficient. This saved him from a demolition that would have cost over €200,000.

For the buyer: Before buying, check the property boundaries and any possible encroachments. If an encroachment exists, be aware that the seller could be required to resolve it before the sale. In case of dispute, this decision protects you if you are in good faith.

Be careful however: if the encroachment is significant (several tens of centimetres) or affects the structure of the building, total demolition may still be possible. Proportionality is assessed on a case-by-case basis.

Four tips to avoid this type of dispute

• Have your land surveyed before any construction: An amicable (between neighbours) or judicial (in case of disagreement) survey definitively sets the boundaries. This costs between €500 and €1,500, but avoids much higher litigation costs.
• Have an as-built survey done after construction: A surveyor checks that the structure respects the boundaries. In Dieppe, a private individual thus discovered a 5 cm discrepancy before the end of the works, and was able to correct it without a trial.
• Negotiate a conventional easement: If the encroachment is unavoidable (e.g., for a pipe), you can sign an agreement with the neighbour, for compensation. This secures the situation.
• Consult a lawyer at the first sign of tension: A well-drafted registered letter may suffice to reach an agreement. Do not let the conflict escalate: the earlier you act, the lower the costs.

Further reading: related case law and developments

This decision is part of a broader movement by the courts towards proportionality. Already in 2014, the Supreme Court held (Civ. 3e, 5 Nov. 2014, no. 13-23.119) that demolition of a structure encroaching on a right of way was not automatic if another solution existed. On the other hand, in case of encroachment on public land, demolition often remains the rule (CE, 20 May 2011, no. 338559).

The current trend is therefore to seek an equitable solution, especially when the builder is in good faith and the encroachment is minimal. This means that lower courts must now justify their decision by explaining why planing (or another measure) is insufficient. Failing that, their decision is quashed.

For the future, one can expect the Supreme Court to clarify the criteria of proportionality: extent of encroachment, cost of alternative solutions, good faith of the parties, etc. One thing is certain: the right to total demolition is no longer absolute.

Frequently asked questions

1. Can I demand demolition of a wall that encroaches 5 cm onto my land?
Yes, you can demand it, but the judge may impose simple planing if that suffices to remove the encroachment. You must demonstrate that planing is impossible or insufficient (e.g., if the encroachment affects the foundations).

2. What if my neighbour builds without respecting boundaries?
Immediately have a bailiff's report made and send a formal notice to stop the works. If the building is already finished, you can seek in court the removal of the encroachment. Consult a lawyer to assess your chances.

3. What are the time limits for taking action?
The action for demolition due to encroachment is subject to a 30-year limitation period from completion of the works (Article 2227 of the Civil Code). But the longer you wait, the harder it will be to obtain demolition if the builder argues good faith.

4. Can I sell a property with an encroachment?
Yes, but you must inform the buyer of the encroachment (duty to disclose). Failing that, you could be liable for hidden defects or fraud. Better to regularise the situation before the sale.

5. Does home insurance cover this type of dispute?
The 'legal protection' cover of your home insurance may cover the legal costs, but not always the remedial works. Check your policy. For the builder, the 'dommages-ouvrage' insurance may apply if the encroachment makes the structure unfit for its purpose.

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