Property Encroachment: What to Do When Your Neighbour Builds on Your Land

Imagine: you come home to Fougères after a weekend away and discover that your neighbour has built a small wall encroaching 50 centimetres onto your land. What should you do? Does the law protect you? This situation, more common than you might think, raises a crucial question: can you take action years later? The decision of the Court of Cassation of 6 April 2011 (No. 10-14.425) provides a clear answer: the action for recovery of property, based on encroachment, is not subject to limitation. In other words, you can demand the demolition of the structure regardless of how much time has passed. But beware: this case also reveals a procedural trap that could cause you to lose your right if you do not follow the rules of procedure. Let us analyse this decision together and see how to apply it in practice.

The Facts: A Story Like Many Others

Mr and Mrs X, owners of a house in Betton, discover that their neighbours, the Y family, have built a terrace and a garden shed that encroach onto their plot. Despite several attempts at amicable settlement, the neighbours refuse to demolish. In 2005, Mr and Mrs X bring proceedings before the tribunal d'instance (TI) of Rennes, which has jurisdiction over neighbour disputes. Before the TI, they orally present their claims: to have the encroachment declared and to order demolition. But the TI declares itself materially incompetent (because the dispute exceeds the threshold of €10,000) and refers the case to the tribunal de grande instance (TGI) of Rennes, pursuant to Article 97 of the Code of Civil Procedure (a provision that allows a case to be transferred from an incompetent court to the competent court without starting the procedure anew).

Before the TGI, Mr and Mrs X do not file any new written submissions. They consider that the claims made orally before the TI are validly repeated. The TGI rules in their favour and orders the demolition of the structures encroaching on their property. The Y family appeal. The Rennes Court of Appeal sets aside the judgment: in its view, the TGI was not validly seised because the claims had not been made in writing in the form required before that court. Mr and Mrs X appeal to the Court of Cassation.

What is at stake here is whether an oral claim before an incompetent court can be 'deemed' to be repeated before the competent court without further formality. The Court of Cassation will decide.

The Reasoning of the Court — Analysed

The Court of Cassation quashes the Court of Appeal's decision. It recalls that, according to Article 97 of the Code of Civil Procedure (which governs the referral of a case from an incompetent court to the competent court), 'the procedure continues in accordance with the rules applicable before the court to which the case is referred'. In other words, when the case is referred from the tribunal d'instance to the tribunal de grande instance, the procedural rules of the TGI apply from that point on. Before the TGI, claims must be made in writing (submissions) – except for limited exceptions such as new claims on appeal. In this case, Mr and Mrs X had not filed written submissions after the referral. The Court of Appeal concluded that the TGI was not seised of the claims.

But the Court of Cassation does not follow this reasoning. It finds that the Court of Appeal violated Article 97. Why? Because the TGI is seised by the referral of the case by the TI, not by new written submissions. In other words, the claims made orally before the TI are transmitted to the TGI with the case. The TGI was therefore seised of these claims, even if they were not repeated in writing. However, note: the High Court specifies that 'the procedure continues in accordance with the rules applicable before the TGI'. This means that, if the TGI so requires, Mr and Mrs X should have filed written submissions for their claims to be examined. But in this case, the TGI ruled without requiring submissions, and the Court of Appeal could not set aside the judgment on that ground.

What few people realise is that this decision does not concern the merits of the dispute (the encroachment itself) but only the procedure. The Court of Cassation does not rule on whether the action for recovery is subject to limitation. But it implicitly confirms that the action for recovery, which aims to have one's right of ownership recognised, is imprescriptible (Article 2227 of the Civil Code: 'The right of ownership is imprescriptible'). Indeed, the Y family had attempted to argue that the action was time-barred, but the Court of Appeal had dismissed that argument, and the cassation does not overturn it.

How should you react? If you are in the same situation as Mr and Mrs X, remember that the important thing is to seize the correct court and comply with the formal rules of that court. But do not worry: if you make your claims orally before an incompetent court, they are considered to be repeated before the competent court after referral, unless the latter requires written submissions.

What This Changes for You — In Practice

Concretely, this decision has several practical implications depending on your situation.

Owner victim of encroachment: You can take action at any time, even if the encroachment dates back several years. The imprescriptibility of the action for recovery protects you. But beware: if you wait too long, evidence (photos, witness statements) may disappear. Moreover, if you do nothing, the neighbour could acquire ownership by adverse possession (usucapion) after 30 years of continuous and unequivocal possession. In my practice, I have seen cases where owners waited 20 years before acting: they won on principle, but the demolition costs were higher and neighbourly relations were irreparably damaged. Example: in Betton, a small wall encroaching 30 cm onto a 500 sqm plot led to a demolition order from the TGI of Rennes, with expert and legal fees of €4,000.

Owner who built on the neighbour's land: You cannot rely on limitation to avoid demolition. However, you may invoke good faith or the neighbour's tolerance to try to obtain compensation or a right of way. But note that case law is strict: even a minor encroachment justifies demolition.

Buyer of a property: Before buying, check the property boundaries. A boundary survey (official delimitation of plots) is strongly recommended. If an encroachment exists, negotiate a price reduction or require its regularisation before the sale.

Co-owner: Common parts are protected. If a co-owner encroaches on a common part (e.g., extending a terrace onto the communal garden), the managing syndicate can take legal action without time limit.

In summary, this decision confirms that the right of ownership is an absolute and imprescriptible right. But it also reminds us that procedure must be followed rigorously.

Four Tips to Avoid This Type of Dispute

• Have a boundary survey carried out before any construction. A chartered surveyor officially delimits the properties. This costs between €1,500 and €3,000, but it is the best way to avoid a later dispute. In Fougères, an amicable boundary survey can be completed in one month.
• Keep all documents proving your ownership. Notarial deed, cadastral plan, recent photos of the land. In case of encroachment, these pieces of evidence are essential. Take aerial photos if possible.
• React quickly in case of encroachment. Even if the action is imprescriptible, the longer you wait, the more complicated the situation becomes. Send a registered letter with acknowledgement of receipt to your neighbour to note the encroachment and request its removal. Keep a copy.
• Consult a solicitor before any legal action. A solicitor specialising in property law will help you avoid procedural pitfalls. For example, if you bring proceedings before a tribunal d'instance when the dispute exceeds €10,000, the case will be referred to the TGI, but you must comply with the rules of that court. The solicitor will guide you.

Further Reading: Related Case Law and Developments

This decision is part of a consistent line of the Court of Cassation. For example, in a judgment of 8 July 2009 (No. 08-16.285), the Court ruled that the action for recovery of a right of way is imprescriptible. Similarly, a judgment of 14 November 2012 (No. 11-25.331) clarified that encroachment onto private property by a public highway gives rise to a right to compensation, but demolition may be ordered if the encroachment is excessive.

The trend is towards reinforced protection of the right of ownership. Judges do not hesitate to order the demolition of encroaching structures, even of a few centimetres, and to award damages against the builder. What this means for the future: if you are an owner, you can sleep soundly: your right of ownership is solidly protected. But if you plan to build near the boundary, be extremely cautious: even unintentional encroachment can cost you dearly.

Summary and Next Steps

FAQ: 5 Questions You May Have

1. Can I take action if the encroachment is more than 10 years old? Yes, the action for recovery is imprescriptible. But you must prove that you are still the owner (notarial deed, boundary survey).
2. Do I have to instruct a solicitor? Before the tribunal judiciaire (formerly TGI), a solicitor is mandatory. Before the tribunal de proximité (formerly TI), you can act alone, but a solicitor is advisable.
3. How long does it take to obtain a decision? Count 6 to 12 months for first instance proceedings, and 12 to 18 months on appeal. An urgent procedure (interim relief) can lead to a decision within a few weeks if the encroachment is flagrant.
4. What is the cost of legal action for encroachment? Solicitor's fees (€2,000 to €5,000), expert fees (€1,500 to €3,000), court fees (a few hundred euros). Costs are generally borne by the losing party.
5. Can I claim damages in addition to demolition? Yes, if you prove damage (loss of enjoyment, diminution in value, nuisance). The amount varies: from a few hundred to several thousand euros.

Checklist: What to Do If You Discover an Encroachment

• 1. Take photos and precise measurements.
• 2. Check your title deed and the cadastral plan.
• 3. Send a registered letter to the neighbour informing them and requesting amicable removal.
• 4. If no response, consult a specialist solicitor.
• 5. If necessary, seize the competent court (tribunal judiciaire if the dispute exceeds €10,000, tribunal de proximité otherwise).

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