Property encroachment: even minimal, it violates your right to property (Cass. civ., 20 March 2002)

Imagine: you have just bought a lovely house in Saint-Martin-d'Hères, with a garden where you hoped to plant roses. During the boundary survey, the surveyor tells you that your neighbour's wall encroaches 8 centimetres onto your land. "It's not serious," you are told. Serious or not, the question lies elsewhere: do you have the right to demand that this wall be moved, even for so little?

This question is asked by hundreds of owners each year, whether in Meylan, Grenoble or elsewhere. Is the right to property absolute, or must one tolerate a "reasonable" encroachment? The Court of Cassation ruled clearly in a judgment of 20 March 2002: regardless of the extent of the encroachment, it constitutes a violation of Article 545 of the Civil Code.

In other words, even an encroachment of a few centimetres allows you to demand the demolition of the structure that encroaches, without having to prove that you suffer damage. A strong decision, but one that raises practical questions: how to react? What are your remedies? Let us decipher this judgment, its facts, its reasoning and its practical consequences for you.

The facts: a story that happens every day

In this case, Mrs X was the owner of a plot of land (a property) in Saint-Martin-d'Hères. Her neighbour, Mr Y, had built a structure which, according to her, encroached onto her property. Seized, the court ordered an expert report. The expert confirmed the existence of an encroachment, but described it as "negligible". Relying on this finding, Mr Y considered that the encroachment was too minimal to justify legal action.

Mrs X did not share this view. She sued her neighbour before the tribunal de grande instance of Grenoble to obtain the demolition of the encroaching structure. The court dismissed her claim on the ground that the encroachment was negligible. Mrs X appealed. The Grenoble Court of Appeal upheld the judgment: in its view, such a minimal encroachment did not justify a measure as drastic as demolition.

But Mrs X did not stop there. She lodged an appeal in cassation (appeal to the Court of Cassation). Her argument: the right to property is absolute, and an encroachment, whatever its size, is a violation of it. The Court of Cassation agreed with her, quashing the Court of Appeal's decision and referring the case to another court.

The court's reasoning — dissected

The Court of Cassation relied on Article 545 of the Civil Code, which provides that "no one may be compelled to surrender his property, except for a public purpose and upon payment of just compensation paid in advance". In short, your property is inviolable: no one can compel you to tolerate an encroachment, even minimal, without your consent or without a compulsory purchase procedure.

The lower courts (Court of Appeal) had considered that since the encroachment was negligible, there was no need to order its demolition. But the Court of Cassation replied that "the extent of the encroachment does not matter". As soon as there is an encroachment, the owner may demand its cessation, without having to prove damage. This is what is known as the absolute nature of the right to property.

Note, however, that this position is not new. The Court of Cassation is applying consistent case law here. What is striking is the refusal of any proportionality: even an encroachment of 1 centimetre justifies demolition. Judges cannot invoke the "negligible" nature to dismiss the claim. What few people know is that this rule has an exception: if the encroachment is due to a construction error and the owner of the neighbouring land acted in good faith, the judge may sometimes award damages rather than demolition. But this mitigation is rare and subject to technical impossibility or disproportionate cost.

In my practice, I have encountered cases where owners in Meylan had to fight to assert this right, faced with neighbours who downplayed the encroachment. The Court of Cassation upholds them: the extent of the encroachment is irrelevant.

What this means for you — in practice

For the landlord owner: if your tenant builds a terrace that encroaches onto the neighbour's property, you are liable. You may be forced to demolish, even if the encroachment is 5 cm. Average cost of demolition: €1,500 to €5,000 depending on the structure. Prevention is better than cure.

For the tenant: you are not the owner, but you can take action if an encroachment bothers you (for example, a wall that blocks your view). You must inform your landlord, who can bring an action. If the landlord does nothing, you can sue for disturbance of enjoyment.

For the buyer: before buying a property in Saint-Martin-d'Hères or Meylan, have a boundary survey carried out (cost: €800 to €1,500). An undisclosed encroachment can cost you dearly after the purchase. You could be forced to demolish or pay damages.

For the co-owner: common parts (walls, roof) are often a source of encroachments. If a co-owner encroaches on a common part, the management company can act. Do not wait for the encroachment to become "acceptable" over time.

If you are in this situation, you must act quickly. The limitation period (time to bring an action) is 30 years for property matters (Article 2227 of the Civil Code). But the longer you wait, the harder it will be to prove the encroachment and enforce your rights.

Four tips to avoid this type of dispute

• Have a boundary survey carried out before any construction: even for a simple fence. The boundary survey precisely delineates the properties. Cost: €800 to €1,500. It is the guarantee of not encroaching involuntarily.
• Obtain written permission from your neighbour if you need to build near the boundary (roof, wall, terrace). Even a verbal agreement can be challenged. A signed written document protects you.
• If you discover an encroachment, do not delay in acting: send a registered letter with acknowledgement of receipt to your neighbour to inform them. If nothing happens, consult a specialist lawyer. Legal fees (€2,000 to €5,000 on average) are often recoverable if you win.
• Check your building damage insurance if you are a builder. It may cover demolition costs in case of unintentional encroachment. But beware: exclusions are numerous.
• In case of a sale, mention any encroachment in the deed: this is a legal obligation. Omission can lead to cancellation of the sale or damages.

Further reading: related case law and developments

This decision is part of consistent case law. As early as 1996 (Civ. 3e, 9 October 1996, No. 94-20.340), the Court of Cassation had held that "encroachment, however minimal, constitutes a violation of the right to property". The 2002 judgment confirms and strengthens this position.

A recent development deserves mention: in a judgment of 7 September 2017 (No. 16-19.013), the Court clarified that the owner may demand demolition even if the encroachment is less than 1 cm. But it also admitted that the judge may, in some cases, substitute damages for demolition if the latter is disproportionate (excessive cost compared to the infringement). Caution: this exception is very limited and applies only if the builder acted in good faith.

The trend of the courts is therefore clear: the right to property is intangible, but some flexibility may be introduced to avoid absurd solutions. In any case, it is better not to play with the boundaries of your land.

Summary and next steps

What to do if you discover an encroachment:

1. Evidence the encroachment: call in a chartered surveyor to measure the encroachment precisely and produce a report.
2. Serve a formal notice on your neighbour: by registered letter with AR, demand the removal of the encroachment within 30 days.
3. Consult a specialist lawyer: they will assess your chances and assist you in any proceedings.
4. Bring legal proceedings: if the neighbour refuses, you can sue them in the judicial court to obtain demolition and damages.
5. Be mindful of time limits: the action is time-barred after 30 years from the encroachment. But the longer you wait, the harder the evidence.

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 →