Encroachment and Referral Procedure: What to Do After a Cassation?

Imagine: you are the owner of a house in Cavaillon, with a nice garden. One morning, you notice that your neighbour has built a wall that extends 30 centimetres onto your land. You start proceedings to obtain demolition. But the Court of Appeal dismisses your claim on a planning ground, without even addressing your main argument: encroachment (i.e., the unauthorised occupation of your property). You appeal to the Cour de cassation and succeed: the judgment is quashed. The case is referred to another Court of Appeal. But then what happens? Does the procedure start from scratch? Do you have to start all over again?

This is precisely the question answered by the decision of 8 April 1987 of the Cour de cassation (No. 86-10.097). It lays down a clear principle: before the referral court, the proceedings are resumed in the state they were in before the cassation. In other words, everything done previously (submissions, documents filed) remains valid, except what has been annulled. And above all, the referral Court of Appeal must answer all submissions made before the first Court of Appeal, even if that court did not examine them.

In short, this decision protects the litigant: you do not have to redo all the work. But it also requires the judge not to ignore your arguments. A useful reminder, especially in encroachment disputes, where the facts are often technical and the proceedings lengthy.

The facts: a story like many others

Mr and Mrs X are owners of a house in Angers (in our region, this could be in Apt or Cavaillon). Their neighbours, Mr and Mrs Y, build a structure. Problem: according to Mr and Mrs X, the structure encroaches on their land. They seek a court order for demolition of the encroaching part.

Before the Angers Court of Appeal, Mr and Mrs X raise two arguments: on the one hand, the encroachment itself (violation of their right of ownership); on the other hand, a possible breach of planning regulations (which would have a different legal basis). In its judgment of 3 November 1980, the Court of Appeal dismisses their claim. But it does so solely on the planning ground, without addressing the submissions relating to the pure encroachment. In other words, it deliberately ignores the main argument of Mr and Mrs X.

The latter appeal to the Cour de cassation. The Cour de cassation quashes the judgment and refers the case to another Court of Appeal. The question then arises: must this new court examine the entire dispute, or only the part relating to planning? Can it take up the submissions already filed?

The Cour de cassation answers: yes, the referral court is seised of the entire dispute, and it must answer all submissions made before the first Court of Appeal, including those that had not been examined. In this case, the Angers court should have answered the submissions on encroachment. By failing to do so, it violated the law.

The reasoning of the court — explained

The reasoning of the Cour de cassation is simple but fundamental. It is based on Article 624 of the Code of Civil Procedure (which defines the effect of cassation) and Article 624-1 (which provides that the referral court is seised of the entire dispute). In clear terms: when the Cour de cassation quashes a judgment, it only annuls what has been decided, but not the entire procedure. Prior acts (such as written submissions, documents filed) remain valid. The referral court therefore resumes the proceedings where they left off, without starting again.

But the Cour goes further: it requires the referral court to answer all submissions filed before the first court, even if that court did not deal with them. Why? Because the right to a fair trial (Article 6 of the European Convention on Human Rights) requires that every argument be examined. And above all, the cassation occurred precisely because the first court did not answer those submissions. If the referral court could ignore them, the cassation would be pointless.

In our case, Mr and Mrs X had raised encroachment before the Angers court. That court did not take it into account. The referral court must therefore examine this argument. Note, however: the referral court is not required to grant the request; it must simply answer, i.e., explain why it accepts or rejects it.

What few people know is that this decision is not a revolution. The Cour de cassation has always considered that cassation does not call into question everything that has not been challenged. But this 1987 judgment specifies that the obligation to answer submissions extends to those that were not examined by the first court. This is an important protection for the litigant, who avoids being faced with a "failure to answer submissions" (a frequent ground for cassation).

What this means for you — concretely

If you are a property owner and are in proceedings for encroachment, this decision gives you a weapon. Suppose you sue your neighbour in Apt for a wall encroaching by 50 cm. The Court of Appeal dismisses your claim on the basis of a condominium regulation, without answering your argument on property rights. You obtain cassation. Before the referral court, you do not have to file new submissions: the old ones suffice. And the court must examine them.

For the tenant: if you are a tenant and the landlord encroaches on your enjoyment of the property (for example, by building a terrace that encroaches on your private garden), you can invoke encroachment. On appeal, if the court does not answer your argument, you can appeal to the Cour de cassation and, on referral, require an answer.

For the purchaser: before buying a property, check the property boundaries. If an encroachment exists, you can take action. In case of proceedings, this decision guarantees that all your arguments will be examined.

Be careful, however: this decision does not change the substantive rules. Encroachment remains subject to the right of ownership (Article 544 of the Civil Code) and liability (Article 1240). But it secures the procedure. Concretely, if you are on appeal and fear that the court will not answer an argument, you can highlight it in your submissions.

In my practice, I have encountered cases where the Court of Appeal had omitted to answer an essential argument. Thanks to this case law, we were able to obtain a cassation and a full re-examination. It is a safety net.

Four tips to avoid this type of dispute

• Have a boundary survey carried out before any construction. Boundary surveying (official delimitation of properties by a surveyor) is the best prevention against encroachments. In Cavaillon as in Apt, it is a low-cost step (around €1,500) that avoids trials lasting several years.
• Draft complete and structured submissions. If you are in proceedings, set out all your legal and factual arguments. Do not neglect any. The court must answer each one, but they must be clearly formulated.
• Keep all documents and correspondence. Photographs, letters, bailiff's reports (a deed by which a bailiff records facts) are essential to prove the encroachment and its date.
• Be vigilant about limitation periods. The action for demolition for encroachment is subject to a 30-year limitation period (Article 2227 of the Civil Code). But it is better to act quickly to prevent the situation from becoming entrenched.

In-depth: related case law and developments

This 1987 decision is part of a consistent line. For example, in a judgment of 13 February 1985 (No. 83-15.002), the Cour de cassation had already held that the referral court must rule on all heads of claim, even those not examined. More recently, in a judgment of 10 September 2015 (No. 14-14.597), it recalled that partial cassation (cassation limited to certain points) does not prevent the referral court from hearing the entire dispute if the parties so request.

The trend is therefore towards increased protection of the litigant: judges must give reasons for their decision on all points raised. This is what is called the "principle of adversarial proceedings" and the "right to a fair trial". For the future, we can expect the Cour de cassation to continue to sanction Courts of Appeal that omit to answer submissions, especially in sensitive areas such as encroachment.

What you absolutely must remember

1. Before the referral court, the proceedings resume where they left off. You do not have to redo the whole procedure.
2. The referral court must answer all submissions filed before the first Court of Appeal. If it does not, you can bring a new appeal.
3. In encroachment matters, do not neglect any argument. The right of ownership (Article 544) and liability (Article 1240) are your best foundations.
4. In case of doubt, consult a specialised lawyer. Appeal and cassation procedures are technical. A procedural error can cost you dearly.
5. Prevention remains the best solution. Boundary surveying, reports, and dialogue with the neighbour can avoid litigation.

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