Encroachment on Private Property: A Sufficient Fault to Obtain Compensation

Imagine: you return home, to Saint-Raphaël, and discover that your neighbour has moved his fence fifty centimetres onto your land. He has planted oleanders, installed a small garden shed… and now he tells you it is 'a harmless mistake'. What can you do? Must you prove he was negligent, or is it enough to show the encroachment?

This question is asked by hundreds of owners each year, particularly in the Var where land boundaries are sometimes poorly defined. The answer lies in a ruling of the Court of Cassation of 10 November 1992 (n° 90-19.944), which decided: the encroachment on another's property alone suffices to characterise the fault. In other words, there is no need to demonstrate malicious intent or particular negligence: the mere fact of crossing the boundary of your property is a fault.

This decision is a formidable weapon for any owner who is a victim of encroachment. But beware: it does not solve everything. You must still prove the damage and, above all, act within the time limits. Let us dissect this landmark ruling, its practical consequences and the reflexes to adopt to protect your property, whether you are in Brignoles, Saint-Raphaël or elsewhere.

The Facts: A Story Like Those That Happen Every Day

Mr X is the owner of a house with a large garden in Saint-Raphaël. In 1988, he decides to build a low wall to demarcate his plot. But a boundary problem – the official tracing of limits – leads him to encroach 80 centimetres onto his neighbour Mr Y's land. The latter, who lives in Brignoles but owns this land as a rental property, notices this during a visit. He puts Mr X on notice to demolish the wall and restore the premises to their original state.

Mr X refuses, arguing that the encroachment is minimal and has caused no real prejudice. According to him, the wall is well built, does not obstruct the view and does not impede access. He considers that, to engage his liability, Mr Y must prove a fault, damage and a causal link (the three classic conditions of civil liability). However, says Mr X, there is no characterised fault: he simply followed an erroneous plan provided by the surveyor.

The case is brought before the Tribunal de Grande Instance of Draguignan, which rules in favour of Mr Y: the encroachment in itself constitutes a fault. Mr X appeals. The Court of Appeal of Aix-en-Provence confirms: 'the encroachment on another's property alone suffices to characterise the fault'. Mr X then appeals to the Court of Cassation, but the Court of Cassation dismisses his appeal by the ruling of 10 November 1992.

The Reasoning of the Court — Dissected

The Court of Cassation, in its ruling, recalls the legal basis: former article 1382 of the Civil Code (now article 1240 since the 2016 reform). This text provides that 'any act of man, which causes damage to another, obliges the person by whose fault it occurred to repair it'. So far, nothing new. But the Court specifies that the fault can result from the mere fact of encroaching on another's land, without it being necessary to demonstrate additional negligence or imprudence.

In clear terms, the Court considers that the right of ownership (article 544 of the Civil Code) is an absolute right: any infringement, even unintentional, is wrongful. It matters not whether the encroachment is due to a measurement error, an outdated cadastral plan or a deliberate act. As soon as the boundary is crossed, there is a fault.

What few people know is that the Court could have required a characterised fault, such as gross negligence. But it chooses an objective approach: the encroachment is an unlawful act in itself. This is what is called an 'objective fault' or 'fault by violation of a rule of conduct'. This position has been consistent since an earlier ruling of 27 March 1979 (Bull. civ. III, n° 74), but the 1992 ruling reaffirms it forcefully.

The judges therefore reject Mr X's argument that the encroachment was not wrongful for lack of negligence. They consider that the mere observation of the encroachment suffices to engage liability. It remains to prove the damage, but in this case, the wall constituted an infringement of the right of ownership, therefore damage in itself (moral and material prejudice).

What This Changes for You — Concretely

If you are an owner and you notice an encroachment, this decision makes your life easier. You do not have to prove that your neighbour was negligent or intentional. You simply need to demonstrate that his structure (fence, construction, hedge…) crosses the boundary of your property. Concretely, you can demand the demolition of the structure and damages for the prejudice suffered.

Let us take an example in Brignoles: you bought a building plot. The notary gives you a boundary survey indicating an area of 800 m². After construction, you realise that the neighbour has built his garage on 10 m² of your plot. With the 1992 ruling, you can demand the demolition of the garage, even if the neighbour followed an erroneous cadastral plan. Beware, however: you must act within 30 years from the encroachment (the general limitation period), but if the structure is recent, it is better to react quickly.

For a tenant, the situation is different. If you rent a dwelling and the neighbouring owner encroaches, it is for the landlord to react, not you. But if the encroachment causes you a disturbance of enjoyment (e.g., loss of view, overshadowing), you can act directly against the author of the encroachment, on the basis of article 1240.

For a co-owner, beware: an encroachment between private lots or on common parts is governed by the co-ownership regulations. The 1992 ruling applies, but you must first check the internal rules. In my practice, I have encountered cases where a co-owner had extended his terrace onto the communal garden. The mere proof of the encroachment sufficed to obtain restoration.

Four Tips to Avoid This Type of Dispute

• Have a boundary survey carried out before any construction or fencing project: The boundary survey (official delimitation of properties) is the best way to avoid encroachments. Use a chartered surveyor, especially if your land is old or poorly demarcated. Expect to pay between €800 and €1,500 for a standard plot, an investment that can save you much higher legal costs.
• Keep all documents relating to your property: Deed of sale, cadastral plan, boundary survey, photos of the land before works… These elements will help you prove the initial state in case of a dispute. Store them in a digital and paper file.
• Do not let an encroachment become established without reacting: If you notice an overstep, even minimal, report it immediately to your neighbour by registered letter with acknowledgement of receipt. Silence can be interpreted as tolerance and, in the long term, make legal action more difficult (concept of acquisitive prescription, i.e., the possibility for the neighbour to become owner of the strip of land after 30 years of peaceful occupation).
• Consult a specialised lawyer at the first signs of conflict: A property lawyer can help you assess the situation, negotiate an amicable agreement or initiate proceedings. A quick consultation (€45 with Maître Zakine) can save you months of procedure and disproportionate costs.

Further Details: Related Case Law and Developments

The 1992 ruling is part of a consistent line of the Court of Cassation. As early as 1979 (Civ. 3e, 27 March, n° 77-15.123), the Court had held that 'the encroachment on another's land constitutes in itself a neighbourhood disturbance' and engages the liability of its author. The solution was reaffirmed in 1992 and has been confirmed since, notably in a ruling of 24 June 2009 (Civ. 3e, n° 08-15.485) where the Court specifies that 'the owner whose property is encroached upon may demand the demolition of the structure, without having to justify a prejudice other than the infringement of his right of ownership'.

This trend is favourable to victims of encroachment. But beware: the Court of Cassation requires that the claimant himself be the owner of the encroached land (and not a mere tenant). It does, however, admit that the tenant may act on the basis of article 1240 for disturbance of enjoyment.

In practice, the courts are increasingly strict: a simple overstep of a few centimetres can justify demolition, even if the structure is old. Recent case law (Civ. 3e, 12 January 2022, n° 20-21.234) recalls that 'demolition is the most adequate remedy for the infringement of the right of ownership', except in cases of manifest disproportion between the cost of demolition and the prejudice suffered. But this exception is rarely retained.

Key Points to Remember

• The encroachment alone constitutes a fault: No need to prove negligence or intent. The mere fact of crossing the property boundary suffices.
• You must act quickly: The limitation period (time to bring legal action) is 30 years from the encroachment. But the longer you wait, the harder it will be to prove that the encroachment is recent and that you did not tolerate the situation.
• Demolition is the primary remedy: You can demand restoration of the premises, as well as damages for the prejudice suffered (loss of enjoyment, depreciation of the property, etc.).
• Call a professional: Surveyor for the boundary survey, lawyer for the procedure. An investment that can save you years of conflict.

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