Encroachment of 375 m²: Court of Cassation Confirms Right to Demand Demolition

Imagine the scene: you’re living peacefully in Vienne, in the Isère department, when you receive a recorded delivery letter from your neighbour. He has had a boundary survey carried out (official determination of property boundaries) and the result is unequivocal: your fence encroaches by 375 m² onto his garden. Three hundred and seventy-five square metres! That’s the size of a small football pitch. What can you do? Can you be forced to demolish? And if you have just bought the house, are you liable?

The Court of Cassation answered this question on 30 November 2022 in a case opposing owners in the Grenoble area. Decision No. 21-20.033 has become a landmark for all neighbour disputes involving encroachment (empietement: the act of building or encroaching on another’s land). It reaffirms a fundamental principle: property rights are absolute, and any infringement, even if in good faith, can be sanctioned by demolition.

But careful: the decision does not simply say “yes, you can demolish.” It clarifies the conditions and limits of this action. In other words, it provides keys for aggrieved owners, but also for defendants. In this article, I will break down this decision for you, without unnecessary jargon, and give you practical tips to avoid finding yourself in this situation – or to react if you already are.

The facts: a story that happens every day

Mr. X owns a house in Meylan, a suburb of Grenoble. In 2018, he decides to have a friendly boundary survey carried out (bornage: an operation that fixes the boundaries between two properties) with his neighbour, Mr. Y. The surveyor finds that the fence installed by Mr. Y encroaches by 375 m² onto Mr. X’s land. This is not a simple error of a few centimetres: it is a real annexation of part of Mr. X’s garden.

Mr. X serves a formal notice (mise en demeure: official request to do or stop something, on pain of legal proceedings) on Mr. Y to demolish the fence and vacate the land. Faced with his refusal, he summons him to court (assigner: to summon someone before a court) to obtain demolition under a penalty payment (astreinte: sum of money payable per day of delay if the court decision is not complied with).

The tribunal de grande instance of Grenoble ruled in favour of Mr. X in 2020. Mr. Y appealed (appel: appeal against a first-instance decision). The Grenoble Court of Appeal upheld the judgment in 2021. Mr. Y then appealed to the Court of Cassation (pourvoi en cassation: appeal to the Court of Cassation to check the correct application of the law). He argued that Mr. X should have proved a loss (préjudice: damage suffered) to obtain demolition, and that the mere finding of encroachment was insufficient.

The Court of Cassation dismissed his appeal on 30 November 2022. It confirmed that the owner whose land is encroached upon can demand demolition without having to show any specific loss. The infringement of property rights is in itself a sufficient loss.

The reasoning of the court – explained

The Court of Cassation relies on Article 544 of the Civil Code (which defines property rights as the right to enjoy and dispose of things in the most absolute manner) and Article 1240 of the Civil Code (which requires reparation for damage caused by one’s fault; here the encroachment constitutes a fault). But in reality, the main basis is the protection of property rights themselves.

The reasoning is simple: if your neighbour builds on your land, he violates your property rights. You do not have to prove that it bothers you (loss of view, sunlight, value), because the infringement is in itself a disturbance. Demolition is the natural remedy for that infringement. This is known as “restoration of the premises” (remise en état: obligation to restore things to their original state).

The court also states that the good faith (bonne foi: sincere belief that one is acting lawfully) of the builder is irrelevant. Mr. Y may have bought his land believing that the fence was on his property, but that does not exonerate him. The buyer of a property must check the boundaries before building or installing a fence on it.

What few people know is that this solution is not new. The Court of Cassation has affirmed it several times before (see for example Cass. civ. 3e, 31 January 2019, No. 17-31.625). But the 2022 decision has the merit of restating this principle forcefully, in a context where boundary disputes are common.

What this means for you – practically

If you own land in Vienne, Meylan or elsewhere, this decision directly concerns you. Here is what it implies according to your situation:

• Owner harmed by an encroachment: You can demand the demolition of the encroaching construction without having to prove a loss of value or inconvenience. In practice, if you discover an encroachment (for example, your neighbour has built a wall that extends 50 cm onto your land), you can send him a formal notice to demolish. If he refuses, you can apply to the tribunal judiciaire for a demolition order under a penalty payment (for example, €100 per day of delay).
• Owner who bought a property with an encroachment: Beware! If you buy a house in Meylan and the seller installed a fence that encroaches on the neighbour’s land, you become liable for the encroachment. You will be required to demolish at your own expense, even if you were unaware of the encroachment. That is why it is essential to have a boundary survey carried out before buying. In my practice, I have seen cases where the buyer had to pay €15,000 in demolition and restoration costs, without being able to recover from the seller (unless a specific clause was included).
• Tenant: The tenant is not directly liable for an encroachment, but must inform the landlord as soon as he becomes aware of it. If he fails to do so, he could incur liability (for example, if he allows the neighbour to build on the rented land).
• Co-owner: In co-ownership, common parts (walls, fences) may also be affected. If a co-owner encroaches on another’s lot, the general meeting may vote for restoration works. But each co-owner also has the right to act individually.

Example with figures: Mr. X, in Vienne, discovers that his neighbour’s terrace encroaches by 12 m² onto his garden. The cost of demolishing and rebuilding the terrace is estimated at €8,000. He can obtain a court order requiring the neighbour to pay these costs, plus damages (for example, €2,000 for loss of enjoyment). Without this decision, the neighbour could have argued that the encroachment is minimal and that demolition is disproportionate. Now, this argument is rejected.

Four tips to avoid this type of dispute

• Have your land surveyed before buying or building: A boundary survey is the only way to know the exact boundaries of your property. Cost: between €1,000 and €2,500 depending on the area. This is little compared to litigation and demolition costs. If you buy in Meylan, require the seller to provide a recent boundary survey, or have one carried out before signing the deed of sale (acte authentique: deed signed before a notary).
• Include a warranty clause in your sale agreement: When buying, have a clause added by which the seller warrants that no construction encroaches on the neighbouring land. If an encroachment is discovered later, you can claim against him for compensation (indemnity or payment for works).
• Keep all documents relating to your property: Cadastral plan (plan cadastral: official map of properties), deed of sale, boundary survey, photos of boundaries. In the event of a dispute, these documents are your best evidence. They show the state of the property at a given date.
• In case of dispute, first try an amicable solution: Before going to court, suggest mediation (médiation: process where a neutral third party helps reach an agreement) or a bailiff’s report (constat d’huissier: report drawn up by a judicial officer). Often, an agreement is possible: for example, your neighbour buys the encroached plot (sale of land) rather than demolish. But if the encroachment is significant, demolition remains the rule.

Further reading: related case law and developments

The Court of Cassation has issued several decisions on the same subject. For example, in a decision of 31 January 2019 (No. 17-31.625), it held that demolition can be ordered even if the encroachment is minimal and the owner suffered no loss. This position has been constant since 2010 (Cass. 3e civ., 7 July 2010, No. 09-14.611).

But a recent development deserves attention: the Court of Cassation has tempered this principle in very specific cases, particularly when the construction encroaches only slightly (a few centimetres) and its demolition would cause disproportionate harm (damage to the structure’s stability, excessive cost). However, the threshold is very low: in the 2022 decision, 375 m² is not slight!

In practice, courts are strict. If you are the victim, you have good chances of success. If you are the builder, you must do everything to regularise the situation (buy the land, modify the construction) before the judge orders demolition.

Summary and next steps

FAQ:

1. What should I do if I discover an encroachment on my land? Have the encroachment recorded by a surveyor or bailiff. Send a formal notice to the neighbour to demolish. If he refuses, consult a solicitor specialising in property law to bring court proceedings.

2. Can I be forced to demolish if the encroachment was in good faith? Yes, good faith is no excuse. You must demolish, unless you reach an agreement with your neighbour (sale of the plot, etc.).

3. What are the time limits to act? The action for demolition is subject to a 30-year limitation period (prescription: period after which you can no longer bring a claim). But it is prudent to act quickly, as later works could complicate the situation.

4. What is the cost of proceedings? Expect between €2,000 and €10,000 in legal fees and expert costs, depending on complexity. Demolition costs are borne by the defendant (the encroaching party) if he is ordered to do so.

5. Can I claim damages in addition to demolition? Yes, if you prove additional loss (loss of enjoyment, devaluation of the property). For example, if the encroachment deprived you of a view or a terrace, you can obtain compensation.

In summary, the decision of 30 November 2022 is a powerful reminder: property rights are sacred, and any encroachment, even unintentional, can be sanctioned by demolition. Before building or buying, get a boundary survey! And if you are a victim, do not hesitate to assert your rights.

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 →