Property Encroachment: When Defending Your Rights Cannot Constitute an Abuse

Imagine the scene: you return home to Grande-Synthe and notice that your neighbour has built a small wall encroaching a few centimetres onto your land. Nothing serious, you think. But what to do? Leave it, at the risk of losing part of your property, or demand demolition, at the risk of being seen as a litigious neighbour?

This is exactly the question that arose before the Cour de cassation in 1990. A property owner, Mr Y…, sued his neighbour to have a minimal encroachment demolished. The lower court (the court of appeal) ruled against him, holding that his claim was abusive because the encroachment was insignificant and caused him negligible harm. But the Cour de cassation disagreed.

In this ruling, France's highest court established a simple and strong principle: defence of property rights against encroachment can never degenerate into an abuse. In other words, even if the encroachment is ridiculously small, you have the right to demand restoration without risk of being penalised for abuse of right. Explanation.

The Facts: An Everyday Story

Mr Y… owns a house in Grande-Synthe. One day, he discovers that his neighbour has built a structure encroaching on his plot. The encroachment is minimal: barely a few centimetres. But for Mr Y…, it is a matter of principle: his property right is violated. He therefore seeks a court order for demolition and restoration of the premises.

The neighbour, for his part, pleads good faith: the encroachment is unintentional, causes no real harm to Mr Y…, and demolition would be costly for him. He asks that Mr Y…'s claim be declared abusive and that he be ordered to pay damages.

The court of appeal ruled in favour of the neighbour. It held that Mr Y…'s exercise of his property right was abusive because he derived only minimal benefit (a few centimetres) while the harm to the neighbour was significant (cost of demolition). In short, for the lower court, there was a disproportion between the benefit to Mr Y… and the harm caused to his neighbour.

Mr Y… appealed to the Cour de cassation. He argued that defending his property right cannot be characterised as abusive, regardless of the extent of the encroachment. The Cour de cassation agreed.

The Court's Reasoning — Analysed

The Cour de cassation quashed the appeal court's decision, citing Article 544 of the Civil Code (the right of property) and Article 1240 of the Civil Code (liability for fault). It recalled a fundamental principle: defence of property rights against encroachment cannot degenerate into abuse.

To understand this reasoning, one must distinguish two things: on the one hand, the property right itself, which is absolute; on the other, the exercise of that right, which can be limited by abuse. The Cour de cassation says that when defending one's property right against an infringement (an encroachment), one cannot be accused of abusing that right. In other words, legal action to stop an encroachment is always legitimate, even if the encroachment is minimal.

The court of appeal erred in balancing Mr Y…'s interest (recovering a few centimetres) against the neighbour's harm (cost of demolition). For the Cour de cassation, such a balance is not required: once the encroachment is established, the owner is entitled to restoration, without having to justify his interest.

However, this principle applies only to the defence of the property right itself. If Mr Y…, after obtaining demolition, had acted maliciously (for example, by refusing an amicable solution without valid reason), he could have been penalised for abuse. But the mere request for restoration is not abusive.

What few people know is that this solution has been constant since 1990 and has been reaffirmed several times. For example, in a ruling of 25 January 2006 (N° 04-14.112), the Cour de cassation held that even an encroachment of 5 cm justifies demolition, without abuse.

What This Means for You — Practically

If you are a property owner (landlord or occupant), this decision protects you. If a neighbour, tenant, or third party encroaches on your land (wall, fence, building, planting), you have the right to demand demolition, even if the encroachment is minimal. You are not at risk of being penalised for abuse of right.

But concretely, how should you react? Suppose your neighbour in Dunkirk has built a garden shed that extends 10 cm onto your plot. You can ask him to move it. If he refuses, you can sue him to obtain an order for demolition. And even if the judge considers the encroachment ridiculous, he must grant your request, without being able to order you to pay damages for abusive proceedings.

For the encroaching owner, the situation is reversed: he cannot rely on the minimal nature of the encroachment to avoid demolition. He must restore the premises at his own expense, which can be costly (several thousand euros for a building).

If you are a tenant, you are not directly affected by this ruling, but you should know that your landlord has the right to defend his property. If you notice an encroachment on the property you rent, report it to your landlord.

Finally, for buyers: during a sale, check the property boundaries (land survey) before signing. An undeclared encroachment can lead to later disputes. In my practice, I have encountered cases where the encroachment was only discovered after the sale, forcing the buyer to take action against the seller for latent defect.

Four Tips to Avoid This Type of Dispute

• Have your land surveyed before any construction. The land survey (official delimitation of properties) carried out by a chartered surveyor prevents unintentional encroachments. Expect to pay about €1,000 to €2,000 for a standard plot. In Grande-Synthe, this cost is quickly offset by peace of mind.
• When in doubt, request written authorisation. If you plan a construction near the boundary, have your neighbour sign an agreement. This could be a right of access easement or a simple written authorisation that will protect you in case of a dispute.
• Prefer conciliation before litigation. Even if the case law is in your favour, a lawsuit costs time and money. Try an amicable agreement (relocation of the construction, compensation). If the encroachment is minimal, your neighbour may agree to settle amicably.
• Keep all documents relating to your property. Deed of sale, cadastral plan, land survey, photos, bailiff's reports. In case of a dispute, these pieces of evidence are essential. A bailiff's report costs about €200 to €300 but can make the difference before the judge.

Further Reading: Related Case Law and Developments

The 1990 solution has been consistently reaffirmed. For example, in a ruling of 3 April 2013 (N° 12-14.378), the Cour de cassation held that even if the encroachment causes no harm and demolition is very costly, the owner is entitled to demolition. The judges cannot substitute compensation for demolition if the owner refuses it.

However, there is a limit: abuse may be found if the owner has acted in a dilatory or malicious manner. For example, if he allowed the encroachment for years without reacting and then suddenly demanded demolition. In that case, the judge could consider that there was tacit waiver or abuse. But the mere request for restoration is never abusive.

The trend of the courts is therefore very protective of property rights. In 2024, this case law is still current. The lower courts are required to order demolition once the encroachment is established, without having to assess the extent of the harm.

In Practice: What to Do

FAQ

1. Can I demand demolition of a 2 cm encroachment?
Yes. The case law allows it, even for a minimal encroachment. You are not obliged to accept compensation instead.

2. What should I do if my neighbour builds on my property without my consent?
First send him a registered letter with acknowledgement of receipt asking him to stop the works or demolish. If he refuses, apply to the judicial court (formerly the tribunal de grande instance) to obtain an order for demolition under a penalty.

3. What are the time limits for action?
The action for demolition of an encroachment is subject to a 30-year limitation period (ordinary law period). But the longer you wait, the higher the risk of tacit waiver. Act as soon as you discover it.

4. What is the cost of proceedings?
Expect €2,000 to €5,000 in lawyer's fees, plus costs for surveyor, bailiff, and any expert. But if you win, costs may be borne by your neighbour.

5. Can I obtain damages in addition to demolition?
Yes, if the encroachment has caused you separate harm (e.g., loss of enjoyment, devaluation of the property). But the mere fact of encroachment does not automatically give rise to damages.

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