Encroachment on Neighbouring Land: the Court of Cassation Orders Demolition of the Wall

Imagine: you own a house in Montdidier, in the Somme. One morning, your neighbour starts renovation works. You notice that his new wall encroaches a few centimetres onto your land. What can you do? Does the law give you the right to demand demolition? This seemingly simple question has given rise to abundant litigation. The decision of the Court of Cassation of 14 November 1970 (No. 69-13.540) provides a clear answer: yes, the owner can demand demolition, even if the encroachment is minimal and even if the neighbour argues his good faith.

But what exactly does that change? To understand, let us delve into the history of this dispute and analyse the reasoning of the judges.

The facts: a story like those that happen every day

In this case, the X spouses are owners of a plot of land in Roye. Their neighbour, Mr Y, builds a party wall. However, this wall encroaches onto the property of the X spouses. The latter sue Mr Y to obtain demolition of the wall and compensation for their loss. The Court of Appeal, in a first judgment, finds the encroachment and orders demolition. Mr Y appeals to the Court of Cassation. The Court of Cassation quashes the judgment on the ground that the Court of Appeal did not sufficiently state reasons for its decision on the reality of the encroachment. The case is referred to another Court of Appeal.

Twist: the court of referral, after an expert's report, refuses to order demolition. It considers that the proof of the encroachment has not been established. The X spouses appeal again to the Court of Cassation. The Court of Cassation, seised of the question of res judicata (was the first judgment, which had found the encroachment, final on this point?), quashes the judgment of the referral court. It recalls that the first judgment, in that it found the encroachment, had not become irrevocable because it had been quashed in its entirety. The referral court could therefore freely assess the evidence of the encroachment.

But most importantly, the Court of Cassation censures the referral court for having violated Article 544 of the Civil Code (which defines the right of ownership as the right to enjoy and dispose of things in the most absolute manner). By refusing to order demolition even though the encroachment was established, the referral court failed to recognise the property rights of the X spouses.

The reasoning of the court — dissected

The Court of Cassation relies on Article 544 of the Civil Code, which provides that ownership is the right to enjoy and dispose of things in the most absolute manner, provided that one does not make a use prohibited by laws or regulations. This text is the cornerstone of property law in France. In the case of an encroachment, even minimal, the owner's right of enjoyment and disposition is affected. Therefore, he is entitled to demand the cessation of such interference, which entails the demolition of the encroaching structure.

In other words, the Court of Cassation recalls a fundamental principle: any encroachment, whatever it may be, constitutes a violation of the right of ownership. It does not matter that the builder was in good faith (i.e., he was unaware that he was encroaching on the neighbouring land) or that the encroachment is minor. The aggrieved owner has an absolute right to obtain demolition. This is not a mere discretion left to the judge: it is a right.

What few people know is that this solution has been confirmed subsequently. For example, in a decision of 24 May 2006 (No. 04-17.837), the Court of Cassation held that the owner of land on which a construction encroaches can always obtain its demolition, even if the encroachment is minimal. The only limit is the abusive nature of the claim, but in practice it is extremely rare for a demolition claim to be deemed abusive.

In my practice, I have come across cases where owners hesitated to take action for fear of being seen as difficult neighbours. But the law is clear: you do not have to tolerate the slightest encroachment on your property. However, be careful: you must act quickly, because demolition actions can be barred by the thirty-year limitation period (Article 2227 of the Civil Code) or, in some cases, by acquisitive prescription if the neighbour has possessed the encroached parcel for thirty years.

What this means for you — practically

This decision has very concrete implications for all real estate players.

• Landlord owner: If you let a property and the party wall or a neighbouring construction encroaches on your land, you can demand demolition from the neighbour. For example, in Roye, an owner obtained the demolition of a garage that encroached 15 cm onto his garden. The cost of the proceedings? About €2,000 to €5,000 for lawyer and expert fees, but the value of his property increased by €15,000 after restoration.
• Tenant: As a tenant, you are not directly entitled to the right of ownership. You must inform your landlord of the encroachment. It is up to the landlord to act. If the landlord does nothing, you can put him on notice, but you cannot act alone for demolition.
• Purchaser: Before buying a property, check the property boundaries. An undisclosed encroachment can become a problem. If you buy a house in Montdidier and discover afterwards that the neighbour's wall encroaches, you can take action against the seller for latent defect (Article 1641 of the Civil Code) or against the neighbour for nuisance.
• Co-owner: In a condominium, the common parts are held indivisibly. A co-owner who encroaches on a common part (for example, by building a conservatory on the common garden) may have his construction demolished by decision of the syndic.

Worked example: In Roye, an owner had to pay €8,000 in legal costs to obtain the demolition of a wall encroaching by 30 cm. The neighbour had to demolish and pay €3,000 in damages. In total, the dispute lasted 18 months. Without legal action, the situation would have remained unchanged.

Four tips to avoid this type of dispute

• Have a boundary survey carried out before any construction: The boundary survey (official delimitation of properties) is the best prevention. It must be done by a chartered surveyor. Cost: €1,000 to €2,000, but it avoids years of litigation.
• Check plans and planning permissions: Before buying land or building, consult the cadastral plan and the Local Urban Plan (PLU). In Montdidier, an owner avoided an encroachment by checking that his fence respected the 2-metre distance limit.
• Enter into an easement or party wall agreement: If you build on the boundary line, it is better to sign an agreement with the neighbour to avoid any future dispute. This agreement may include an easement of scaffolding (right to access the neighbouring land to maintain the wall).
• Act quickly upon discovering the encroachment: Do not wait. Send a recorded delivery letter with acknowledgement of receipt to the neighbour asking him to stop the encroachment. If nothing happens, apply to the Judicial Court. The limitation period for a demolition action is 30 years (Article 2227 of the Civil Code), but the longer you wait, the harder it will be to prove the encroachment (traces may disappear).

Further reading: related case law and developments

The 1970 decision is part of a consistent line of the Court of Cassation. As early as 19 May 1955 (Bull. civ. I, No. 197), it was held that encroachment justifies demolition. More recently, the decision of 24 May 2006 (No. 04-17.837) reaffirmed this principle: "The owner of land on which a construction encroaches is entitled to obtain its demolition, regardless of the good faith of the builder and the minimal importance of the encroachment."

However, a notable development is to be noted: the Court of Cassation sometimes admits that the claim for demolition may be dismissed if it constitutes an abuse of right (for example, if the owner acts solely with the intention of harming the neighbour). But in practice, such abuse is very difficult to prove. Another trend: trial judges may award damages in lieu of demolition if the encroachment is minimal and the neighbour is in good faith. But the 1970 solution remains the rule: property rights are absolute, and demolition is the remedy as of right.

What you absolutely must remember

FAQ:

• Can I demand the demolition of a wall that encroaches 5 cm onto my land? Yes, the Court of Cassation allows it, even for a minimal encroachment.
• What if the neighbour refuses to demolish? Apply to the Judicial Court. You can request a judicial expert's report to establish the encroachment.
• Is there a time limit to act? Yes, the limitation period is 30 years from the completion of the encroaching construction. After this period, you can no longer demand demolition.
• Can the neighbour invoke his good faith? No, good faith is irrelevant for demolition. However, it may affect damages.
• What costs should I expect? Budget €1,500 to €5,000 for a lawyer, €1,000 to €3,000 for an expert report, and procedural costs (about €500). If the neighbour is ordered to pay, he may be ordered to reimburse part of these costs (Article 700 of the Code of Civil Procedure).

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 →