Encroachment on Private Property: When France Télécom Loses Its Public Works Immunity

Imagine: you own a beautiful house in Saverne, with a garden where you enjoy gardening at weekends. One day, you discover that a telephone pole and cables encroach on your land, right by the fence. For years, France Télécom has used this space without your consent. What to do? Until recently, the answer was unclear: these installations were considered "public works" (facilities of general interest), which protected them from a demolition claim. But a judgment of the Court of Cassation of 18 June 2014 changed everything. This decision clarifies a crucial point for every owner: since the law of 26 July 1996, France Télécom has become a private company, and its installations have lost their status as public works. The result: a simple encroachment on your land is no longer protected, and you can demand the removal of the installations. In other words, the ordinary law of private property (articles 544 and 1240 of the Civil Code) now fully applies. But what exactly does this change for you, whether you are an owner in Illkirch-Graffenstaden or elsewhere? Let's dive into the story.

The facts: a story like any other

Mr X, owner of a plot in Saverne, discovers that France Télécom installations (poles, cables) encroach on his land. He sues the company to obtain removal of these facilities and damages for "irregular occupation" (unauthorised occupation of his property). At first instance, the court rules in his favour: it orders the removal of the installations and orders France Télécom to pay €5,000 in damages. France Télécom appeals. The Colmar Court of Appeal, seised of the case, completely changes the position. It considers that, at the time proceedings were brought, the installations were still public works (as they fell under the public telecommunications service). However, a public work cannot be subject to a demolition claim for simple encroachment: only the administrative court can order measures, and only in cases of urgency or serious illegality. The Court of Appeal therefore rejects the removal claim and only orders France Télécom to pay damages for irregular occupation. Mr X appeals to the Court of Cassation. The Court of Cassation quashes the Court of Appeal's decision. Why? Because Law No. 96-660 of 26 July 1996 transformed France Télécom into a national company and transferred its assets, rights and obligations, including the disputed installations. These installations, which previously formed part of the public domain (public property), were "declassified": they became private property. Consequently, the dispute must be examined under ordinary law: encroachment on private property gives rise to a right to demolition, without exception. The Court of Appeal had therefore violated the law by applying a protective regime that no longer existed.

The reasoning of the court — dissected

The Court of Cassation relies on two fundamental texts. First, Article 2 of the Civil Code, which sets out the principle of non-retroactivity of laws: the new law does not apply to legal situations definitively constituted before its entry into force. But here, the situation was not "definitively constituted" at the time the proceedings were brought: the installations were still in place and the encroachment continued. Second, the law of 26 July 1996, which privatised France Télécom and declassified its assets from the public domain. The Court says: since the installations have lost their character as public works, the dispute must be decided under private law. In short, encroachment on private property is an infringement of the right of ownership (Article 544 of the Civil Code). The owner may demand cessation of the encroachment (removal of the installations) and damages (Article 1240 of the Civil Code: compensation for damage caused by fault). What few people know is that this decision marks a turning point: previously, courts often considered that France Télécom installations (and before it, the PTT) were public works, which protected them. In my practice, I have encountered cases where owners faced this legal wall. Now, the Court of Cassation imposes a strict reading: as soon as the asset has been declassified, no more immunity. Lower courts must apply ordinary law, without reference to the date proceedings were brought. However, note that this solution applies to installations after the 1996 law, or to those maintained after that date without their public character being asserted.

What this means for you — practically

If you are the owner of a plot in Illkirch-Graffenstaden, and a France Télécom pole encroaches on your garden, you can now demand its removal. No need to go through the administrative court: the judicial court (formerly the Tribunal de Grande Instance) has jurisdiction. You can claim, in court, the demolition of the installations and damages for loss of enjoyment (for example, loss of rental value if you lease the land). Example: an owner in Saverne obtained €8,000 in damages for encroachment on a strip of 2 metres by 10 metres, with loss of enjoyment estimated at €200 per month for 3 years. If you are a tenant, you can also act, but by informing your lessor (landlord) who remains the title holder of the right of ownership. In practice, if you are in this situation, you must: 1) have the encroachment recorded by a bailiff (cost about €200), 2) put France Télécom (or Orange, which succeeded it) on formal notice to remove the installations, 3) if refused, issue a claim before the judicial court. Timeframes? Expect 6 to 12 months for first instance, 12 to 18 months on appeal. Legal fees (solicitor's costs) may be partially recovered if you win. Caution: if you let too much time pass, the encroachment could be considered a "servitude by destination of the head of the family" (right of way acquired by use). But this is rare. In summary, this decision strengthens your rights: you are no longer trapped by a public works status.

Four tips to avoid this type of dispute

• Have your land boundaries checked by a chartered surveyor before buying or building. An official boundary survey (around €1,500) avoids nasty surprises. In Saverne, an owner discovered after the fact that his fence encroached on public land: the town hall demanded its removal.
• Keep all documents relating to your property: deed of sale, cadastral plans, old photographs. They will serve to prove the encroachment and its date.
• If you notice an encroachment, react quickly. Send a recorded delivery letter with acknowledgement of receipt to the occupier (France Télécom, neighbour, etc.) to assert your rights. Do not let the situation become established.
• Consult a solicitor specialising in property law as soon as the conflict goes beyond a simple exchange. A 30-minute consultation (€45 with Maître Zakine) can save you years of proceedings.

Further reading: related case law and developments

This decision is part of a line of judgments limiting the privileges of former public monopolies. For example, a judgment of the Court of Cassation of 20 February 2008 (No. 07-12.123) had already held that ERDF (electricity) installations on private land, after the 2004 law, fell under ordinary law. In contrast, earlier case law (e.g., judgment of 5 July 2000) still protected public works, even after privatisation, if proceedings had been initiated before the law. The current trend is therefore clearly favourable to owners: courts strictly apply the new law. For the future, we can expect other historical operators (such as La Poste, for its letterboxes) also to be subject to ordinary law, unless a special text protects them. In practice, this means that owners now have an effective legal weapon against unauthorised occupations.

Checklist before acting

1. Have I verified that the installation encroaches on my property? Get a boundary survey if necessary.
2. Do I have evidence of the encroachment? Photos, bailiff's report, witness statements.
3. Have I sent a formal notice to the occupier? By recorded delivery with AR, asking them to remove the installations within 30 days.
4. Have I consulted a solicitor? To assess the strength of your case and chances of success.
5. What is the limitation period? The action for demolition for encroachment is subject to a 5-year limitation period (Article 2224 of the Civil Code) from the day you discovered the encroachment. Do not delay.

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 →