Encroachment on Property: What to Do If Your Neighbour Encroaches on Your Land?

Imagine: you return home, in Quimper, and discover that your neighbour has installed a fence that extends 30 centimetres onto your land. Or worse, part of his garage encroaches on your garden. What to do? Who must prove what? This is precisely the question the Court of Cassation decided in 1988, in a case that remains authoritative today. The answer is clear: it is up to the encroacher to justify a right. If he fails to do so, he must demolish and pay damages. In this article, I explain how this decision applies in practice, particularly in the jurisdictions of Quimper and Pont-l'Abbé.

The facts: a story like many that happen every day

Mr X, an owner in Quimper, owns land bordering a béal (a small irrigation canal). For years, a public pipe crosses his property to supply the béal. One day, the municipality decides to replace this pipe. During the works, it installs a new pipe that slightly encroaches on Mr X's plot, without his permission. Mr X, exasperated, sues the municipality to obtain demolition of the structure and damages. The municipality defends itself by arguing that the encroachment is minimal, does not prevent access to the béal, and is necessary for the public interest. The first instance court rules in favour of the municipality. Mr X appeals. The Rennes Court of Appeal upholds the judgment, finding the encroachment insignificant and causing no prejudice. Mr X then appeals to the Court of Cassation.

The reasoning of the court — broken down

The Court of Cassation quashes the appeal judgment. It recalls a fundamental principle: 'It is for the author of an encroachment, even partial or temporary, on another's immovable property to justify a title authorising it or an amicable agreement of the owner.' In other words, it is not for the owner to prove that the encroachment is unlawful, but for the encroacher to prove that he has the right to do so. In this case, the municipality had neither a title (deed of ownership or easement) nor an agreement from Mr X. Consequently, the encroachment constitutes a voie de fait (arbitrary action by the administration infringing the right of ownership). The legal basis is Article 544 of the Civil Code (right of ownership) and Article 1240 (liability for fault). The Court emphasises that even a minor encroachment is a violation of the right of ownership. This decision confirms previous case law, which firmly protects the right of ownership against any infringement, even by a public body.

What this means for you — practically

If you are an owner in Pont-l'Abbé and your neighbour has built a wall that extends 10 cm onto your land, you can demand its demolition, even if it does not bother you. In my practice, I have seen cases where owners obtained demolition of a terrace encroaching by 20 cm, with damages of €5,000. However, you must act quickly, as prolonged inaction may be interpreted as tolerance (adverse possession). If you are a tenant, you must inform your landlord. If you are a buyer, have the boundaries of your land checked by a surveyor before purchase. In co-ownership, encroachment may concern common parts: only the syndic can act.

Four tips to avoid this type of dispute

• Have your land surveyed: Before any purchase or construction, call a chartered surveyor to mark the boundaries. Cost: about €1,500 for a standard plot, an investment that avoids much more costly lawsuits.
• Obtain a written agreement: If you need to carry out work on the boundary, have a easement agreement or passage agreement signed. A simple email exchange may suffice, but a notarial deed is safer.
• Photograph and keep evidence: In case of encroachment, take dated photos, have a bailiff's report done (about €200) and keep all documents (title deeds, plans).
• Act without delay: Do not wait for years. The limitation period for a demolition action is 5 years from the encroachment. After that, you may lose your right.

Further exploration: related case law and developments

This decision is part of a line protecting the right of ownership. One can cite the judgment of 12 July 1984 (No. 83-12.863) which already held that any encroachment, even minor, is unlawful. More recently, the Court of Cassation specified that encroachment can consist of a mere overhang (judgment of 6 February 2013, No. 11-27.639). The trend is therefore constant: the owner is king in his own home. However, since the ELAN law of 2018, local authorities benefit from certain facilities for works of public interest, but this does not dispense them from obtaining prior agreement.

What you must absolutely remember

FAQ:

• My neighbour built a wall that extends 5 cm onto my land. Can I demand demolition? Yes, even for 5 cm. You must act within 5 years.
• What costs should I expect? A bailiff's report (€200), a lawyer (€1,500 to €3,000), possibly a surveyor (€1,500). In case of trial, costs may be borne by the encroacher.
• What if the encroachment is by a municipality? The same rules apply. You can bring proceedings before the administrative court if the structure is public, but voie de fait also allows action before the civil judge.
• Can I settle amicably? Yes, it is often faster. Propose an easement agreement or a sale of the encroached plot. But do not give in under pressure.

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 →