Real property encroachment: tolerance does not amount to waiver of the right to full compensation

Imagine: you own a house with a garden in Besançon, in the Chaprais district. For years, your neighbour has built a small garden shed that encroaches 50 centimetres onto your land. You have said nothing, for the sake of good neighbourly relations. But one day, he extends this shed and encroaches even further. You then decide to react. Your neighbour replies: 'But you have always let it happen, you have accepted it.' Is he right? Can he rely on your silence to deprive you of any remedy?

This is precisely the question that the Cour de cassation decided in a judgment of 13 April 1972 (No. 71-11.070). And the answer is clear: tolerance does not amount to acceptance. An owner who waits until the encroachments committed by his neighbour are repeated before claiming compensation cannot be considered to have waived his right to full compensation. In other words, your prolonged silence does not deprive you of your right to bring proceedings to stop the encroachment and obtain damages.

This judgment, although old, remains highly relevant. In my practice, I regularly come across cases where owners, for fear of conflict or through ignorance, allow situations of fact to become established that turn into real disputes. Let us analyse this decision together and see what it changes concretely for you, whether you are an owner, a tenant or a real estate professional.

The facts: a story that happens every day

The case pitted an owner, whom we will call Mr X, against his neighbours, Mr and Mrs Z. Mr X owns land in Besançon, separated from that of Mr and Mrs Z by a rural path. One day, Mr X decides to widen this path. To do so, he encroaches onto the property of Mr and Mrs Z. The latter do not react immediately. Years go by. Then, in 1968, Mr X repeats his encroachment: he carries out new works that encroach even further onto the land of Mr and Mrs Z.

This time, Mr and Mrs Z decide to act. On 29 May 1968, they issue a summons against Mr X in summary proceedings (référé) to obtain an expert report to establish the encroachment and assess its extent. The proceedings continue on the merits, and Mr and Mrs Z seek demolition of the encroaching structures and damages. Mr X then raises a major argument: 'You waited years before reacting. You tolerated my first encroachments, so you accepted the situation. You can no longer claim anything today.'

The court of first instance agrees with Mr X on this point: it holds that the tolerant attitude of Mr and Mrs Z over several years constitutes an implicit acceptance of the encroachments, thereby depriving them of any right to compensation. Mr and Mrs Z appeal. The Besançon Court of Appeal reverses the judgment: it holds that tolerance does not amount to waiver. Mr X appeals to the Cour de cassation.

The reasoning of the court — analysed

The Cour de cassation, in its judgment of 13 April 1972, dismisses Mr X's appeal and upholds the Court of Appeal's decision. The reasoning is as follows: the fact that an owner does not act immediately against a first encroachment does not mean that he waives his right of ownership. This right is perpetual and imprescriptible: one cannot lose one's right of ownership by mere silence or tolerance. However, the repetition of encroachments constitutes a new fact that justifies the owner breaking his silence and taking legal action.

The judges rely on the general principle of civil liability, now codified in Article 1240 of the Civil Code (formerly Article 1382): 'Any act of man which causes damage to another obliges the person by whose fault it occurred to repair it.' Encroachment is a civil wrong. The owner who suffers it is entitled to full compensation for his loss. However, tolerance does not erase the fault. It is not a ground for exoneration for the author of the encroachment.

Note, however, that this decision does not mean that you can wait 30 years before acting. In law, the action to stop an encroachment is subject to a 30-year limitation period (the general limitation period). But if you wait too long, you risk losing the possibility of obtaining damages for earlier periods, because damages are subject to a 5-year limitation period (the general limitation period for personal actions). What few people know is that the limitation period for the demolition action (restoration) is 30 years, but actions for monetary compensation are subject to a shorter period. In the 1972 judgment, the Court of Appeal had specified that Mr and Mrs Z were acting only for the recent encroachments (those of 1968), and not for the first encroachments, which was upheld by the Cour de cassation.

What this changes for you — concretely

This decision has important practical implications for all owners. If you are the owner of land or a house and your neighbour encroaches on your property (by a construction, a fence, a plantation, etc.), you can act even if you have tolerated the situation for years. Your silence does not deprive you of your right, provided that you act as soon as the encroachment worsens or is repeated.

Let us take a concrete example: in Montbéliard, an owner allowed his neighbour to build a garden shed encroaching 1 metre onto his plot for 10 years. He said nothing. In 2023, the neighbour extended the shed and now encroaches 2 metres. The owner can then take legal action to seek demolition of the entire shed (including the old part) and damages for the loss suffered, even for the period before 2023, within the 5-year limitation period.

For tenants, the situation is different: you are not the owner and cannot act directly against the encroaching neighbour. You must inform your landlord, who is the only person who can bring an action. But if the landlord tolerates the encroachment, you may suffer a loss of enjoyment of your home (e.g., an obstructed view, loss of light). In that case, you can request a reduction in rent or termination of the lease for disturbance of enjoyment.

For purchasers, this is a point of vigilance: before buying a property, check the property boundaries. An old and tolerated encroachment may be regularised by acquisitive prescription (adverse possession) if the neighbour has possessed the land as his own for 30 years. But as long as the prescription has not been acquired, the seller (or the purchaser) can act. If you buy a property with an encroachment, you can request a warranty against eviction from the seller or a reduction in price.

Four tips to avoid this type of dispute

• Have the boundaries of your property established by a surveyor before any construction or fencing project. An amicable boundary survey costs between €1,000 and €2,500, but it avoids years of litigation. If the neighbour refuses, you can request a judicial boundary determination.
• Do not remain silent in the face of an encroachment, even a minor one. Send a recorded delivery letter to your neighbour asking him to stop the encroachment and restore the premises. Keep a copy. This proves that you have not accepted the situation.
• If the encroachment is repeated or worsens, act quickly. Apply to the tribunal judiciaire to obtain an expert report and, if necessary, a demolition order subject to a penalty payment (astreinte).
• For real estate professionals (agents, developers), systematically include a clause in preliminary sale agreements concerning any possible encroachments, with a guarantee of area and party walls. This secures the transaction.

Further analysis: related case law and developments

The 1972 judgment is part of a consistent line of case law from the Cour de cassation protecting the right of ownership. One can cite a more recent judgment: Cass. 3e civ., 20 December 2018, No. 17-27.136, which reminds that the owner's tolerance does not create a right in favour of the encroacher, and that the demolition action is not time-barred as long as the encroachment continues. However, if the encroachment is old and the owner has allowed it without protest for more than 30 years, the neighbour may invoke acquisitive prescription (usucapion) to become the owner of the encroached plot. This is an exception not to be overlooked.

The trend of the courts is therefore to firmly penalise encroachment, even if tolerated, but to limit compensation to recent losses. In practice, judges often grant demolition and damages for loss of enjoyment (e.g., €100 to €500 per year of encroachment, depending on the area and the inconvenience caused).

Key points to remember

• Tolerance is not a waiver: you can take legal action even after years of silence, provided the encroachment has been repeated or worsened.
• Limitation periods: the demolition action is subject to a 30-year limitation period, damages to 5 years. Act quickly to maximise your compensation.
• Evidence: keep all documents (photos, letters, bailiff's reports) showing the evolution of the encroachment.
• What to do if you are encroached upon: (1) Have it recorded by a bailiff, (2) Send a formal notice, (3) Apply to the court for an expert report in summary proceedings, (4) Bring an action on the merits.
• What to do if you are accused of encroaching: (1) Check the title deeds and the boundary survey, (2) Propose an amicable settlement (purchase of the plot, easement), (3) If refused, negotiate a settlement or plead acquisitive prescription if you have occupied the land for 30 years.

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