Encroachment on Neighbouring Land: Can Total Demolition Be Avoided? (Cass. 1975)

Imagine: you have just bought a pretty house in Sartène, with a garden overlooking the maquis. One day, your neighbour informs you that your boundary wall extends a few centimetres onto his plot. You are devastated: will you have to raze the entire construction? This is the question every property owner facing an encroachment (the act of projecting onto another's land) asks themselves.

The answer was given by the Court of Cassation as early as 1975: no, not necessarily. If it is technically possible to remove the part that projects without affecting the rest, the judge may order partial demolition rather than total demolition. A common-sense solution, but one worth examining more closely.

In this article, we will dissect the judgment of 26 November 1975 (No. 74-12.036) and see what it means in practical terms for you, whether you are a property owner in Grosseto-Prugna or elsewhere in France.

The Facts: A Story Like Many Everyday Occurrences

Mr X, a property owner in Sartène, decides to build a garden shed along his boundary line. Once the work is finished, his neighbour, Mr Y, notices that the roof overhangs his property by 30 centimetres. He sues Mr X seeking total demolition of the shed, arguing that the encroachment is unacceptable.

The court of first instance rules in favour of Mr Y and orders complete demolition. Mr X appeals. The court of appeal finds that the encroachment exists but considers that it is technically possible to remove only the overhanging part without demolishing the whole. It therefore orders restoration within the boundaries (i.e. partial compliance).

Mr Y appeals to the Court of Cassation: according to him, whenever there is an encroachment, total demolition should be the rule. But the Court of Cassation dismisses his appeal. It upholds the reasoning of the appeal judges: they had sovereignly assessed that partial removal was possible, so they could order it.

The Reasoning of the Court — Analysed

The legal basis of the action is Article 544 of the Civil Code (right of ownership), combined with Article 1240 (civil liability: “Any act of a person which causes damage to another obliges the person by whose fault it occurred to make reparation”). In short, encroaching on another's land is a fault causing damage, and that damage must be repaired.

But what reparation? Total demolition is the “natural” remedy when encroaching on another's land. However, the Court of Cassation recalls that the judge may order a different reparation in kind if it is sufficient to put an end to the violation of the right of ownership. However, note: the aggrieved owner is entitled to the removal of the encroachment, but not necessarily to total demolition if a less drastic measure is feasible.

What few people know is that this solution is not a favour to the builder, but a principle of proportionate enforcement. The trial judges (here, the court of appeal) have sovereign discretion to assess whether partial removal is technically feasible. If they answer yes, they may order it, without having to demolish the whole.

In this case, the court of appeal had found that the encroachment affected only a small part of the construction and that its removal would not affect the solidity of the rest. That is why it could order a simple removal of the overhanging part.

What This Means for You — in Practical Terms

You are a property owner in Grosseto-Prugna and have just discovered that your garage encroaches 40 cm onto the neighbouring land. What are the risks? If the judge considers that the encroachment can be removed without demolishing the entire garage, you may be able to simply move back the offending part. The cost will be much lower: expect between €2,000 and €5,000 for a partial rectification, compared to €15,000 to €30,000 for a total reconstruction.

If you are a purchaser of a property with an encroachment, you must be vigilant. The 1975 decision does not protect you if the encroachment is such that partial removal is impossible (for example, if a load-bearing wall is involved). In that case, total demolition remains possible. Before buying, have a boundary survey carried out (official demarcation of properties) and a technical assessment by a chartered surveyor.

For tenants, if you rent a dwelling that encroaches on the neighbour's land, it is the landlord (lessor) who must bear the costs of restoration. You may request a rent reduction or termination of the lease if the encroachment makes the dwelling unfit for its intended use.

Finally, if you are the aggrieved owner (the one on whose land the encroachment occurs), you are entitled to the removal of the encroachment. But beware: if the judge orders partial removal, you cannot demand total demolition simply because you think it is “fairer”. The solution must be proportionate.

Four Tips to Avoid This Type of Dispute

• Have a boundary survey before any construction. Before laying the first stone, hire a chartered surveyor to precisely delineate your land. The cost (€800 to €1,500) is negligible compared to the costs of litigation.
• Check local planning rules. In Sartène as in Grosseto-Prugna, the Local Urban Plan (PLU) imposes minimum distances from boundaries. Inquire at the town hall.
• Photograph the condition of the premises before work. In the event of a dispute, these photos will serve as evidence to prove the encroachment or its absence.
• Negotiate amicably. If the encroachment is minor (a few centimetres), propose an easement of passage or compensation. An amicable agreement is always less costly than litigation.

Further Analysis: Related Case Law and Developments

The solution of 1975 has been confirmed on several occasions. For example, in a judgment of 31 May 2018 (No. 17-18.519), the Court of Cassation specified that the judge may order partial demolition if it is technically possible, even if the aggrieved owner requests total demolition. In other words, the judge is not bound by the plaintiff's request: he must choose the measure least harmful to the builder, provided it removes the encroachment.

Conversely, if the encroachment is irreversible (for example, a building constructed on the boundary line without any possibility of set-back), total demolition remains the only solution. The courts are strict: encroachment is a violation of the right of ownership, and the aggrieved owner is entitled to its complete cessation.

This trend towards proportionality is part of a broader evolution in French civil law, which favours pragmatic solutions over absolute sanctions. But it should not be seen as a licence to encroach: the builder remains at fault and must bear the costs of restoration.

Summary and Next Steps

FAQ:

• Can I demand total demolition if my neighbour encroaches by 5 cm? No, if partial removal is technically possible, the judge may order it.
• What should I do if my neighbour refuses to remove the encroachment? Send a formal notice (registered letter with acknowledgement of receipt). If nothing happens, apply to the judicial court for an order.
• What are the time limits for taking action? The action for demolition for encroachment is subject to a 30-year limitation period from the construction (Article 2227 of the Civil Code).
• How much does a lawsuit for encroachment cost? Expect €3,000 to €8,000 in legal fees, plus expert fees (€1,500 to €3,000).
• Can I obtain damages in addition to demolition? Yes, if the encroachment has caused you particular prejudice (loss of enjoyment, depreciation of the property, etc.).

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 →