Tenant's Encroachment: Landlord's Time to Act is 5 Years from Date of Knowledge

Imagine: you are the owner of a commercial property in Royan, let to a bicycle dealer. One day, you notice that your tenant has, without permission, built a small extension on the terrace to display his bikes. This is an encroachment – that is, an unlawful occupation of part of the property which is not let to him. You ask him to restore the premises, but he refuses. You consider suing him. But here's the question: how long do you have to do so? The answer is now clear: five years from the day you became aware of the encroachment. This is what the Court of Cassation ruled in a judgment of 8 February 2023 (No. 21-20.535).

This decision answers a crucial question for any landlord: the starting point of the limitation period for a contractual liability claim. Until now, some courts considered that since the damage was continuous (the encroachment lasts as long as the irregular occupation continues), the period could only start running at the end of the encroachment. The Court of Cassation says no: it is the knowledge of the damaging event that triggers the period, regardless of whether the encroachment continues. A welcome clarification, but one which imposes increased vigilance on landlords.

In short, if you discover an encroachment today, you have five years to act. After that time, your claim will be time-barred, even if the encroachment continues. In other words, time is against you, and it is useless to wait for the end of the disturbance to bring an action. Let us examine the facts of the case, then the reasoning of the Court, before seeing concretely what this changes for you.

The Facts: A Story Like Many Others

The company Provençale d'investissements (the landlord) grants a commercial lease of premises to the company M. and Mme X (the tenant). The landlord discovers that the tenant has carried out encroaching works on a part of the property not included in the lease. It sues the tenant for damages. The tenant raises the limitation defence: according to him, the landlord's claim was time-barred because more than five years had elapsed since the discovery of the encroachment.

The landlord retorts that since the encroachment is continuous damage, the limitation period can only run from its cessation. It relies on previous case law of the Court of Cassation itself, which, for tortious liability claims (non-contractual) based on an encroachment, held that the starting point was the date of cessation of the encroachment (Cass. 3e civ., 8 Dec. 2010, No. 09-16.010). But here, the claim is contractual, because it is based on the lease agreement. The question was therefore whether the same regime applied.

The Tribunal de grande instance of Marseille, and then the Court of Appeal of Aix-en-Provence, ruled in favour of the tenant: the claim was time-barred. The landlord appealed to the Court of Cassation. The Court of Cassation dismisses the appeal and confirms the appeal judgment: the landlord's contractual liability claim is subject to the ordinary five-year limitation period (Article 2224 of the Civil Code), and the starting point is the date of knowledge of the encroachment, not its cessation. A clear and decisive position.

The Reasoning of the Court — Explained

The Court of Cassation relies on Article 2224 of the Civil Code, which provides that "personal or movable actions are prescribed by five years from the day on which the holder of a right knew or should have known the facts enabling him to exercise it". This text is the ordinary limitation period for civil liability claims, whether contractual or tortious. The Court specifies that, for a contractual liability claim, the starting point is the date of knowledge of the damage, not the date of its cessation, even if the damage is continuous.

Why this difference with previous case law on encroachment in tort? The Court makes a subtle but fundamental distinction: when the claim is based on contract (for example, the lease), the harm results from the breach of a contractual obligation. The landlord knows of the encroachment as soon as he discovers it, and it is at that moment that he can act to stop the disturbance and obtain compensation. The continuous nature of the damage has no bearing on the starting point of the limitation period, because the 2008 law (which reformed limitation periods) unified the regime by making knowledge of the facts the sole criterion. On the other hand, for a tortious claim (non-contractual), the previous case law remains applicable, but it is now marginal.

The Court also rejects the landlord's argument that the encroachment constitutes a voie de fait (a serious infringement of property rights). It recalls that voie de fait requires an action by the administration, not by a private individual. Here, the encroachment is an act of the tenant, and falls under the ordinary law of limitation.

What few people know is that this decision is part of a broader movement by the Court of Cassation to strengthen legal certainty by setting clear starting points for limitation periods. In my practice, I have come across cases where landlords waited until the end of the lease to act, thinking the period only started when the premises were vacated. This decision puts an end to that wait: you must act as soon as you know of the encroachment.

What This Changes for You — Concretely

For the landlord: you must be vigilant. As soon as you notice an encroachment (for example, your tenant has built a partition, installed a sign on your wall, or used part of the courtyard without permission), you have 5 years to bring a court action. Do not delay. If you wait more than 5 years after discovery, your claim will be time-barred. Concrete example: in Saintes, a landlord discovered in 2018 that his tenant had enlarged his premises by encroaching on the common corridor. If he does not act before 2023, he will lose all right to compensation. Note however: the starting point is the date of actual knowledge, not the date when you should have known. But if the facts are apparent, you will be presumed to know them.

For the tenant: this decision protects you against late claims. If your landlord discovers an encroachment and does not act within 5 years, he can no longer claim damages from you. However, he can still ask for termination of the lease for breach of your obligations, because that action is subject to a different limitation period (the ordinary 5-year period runs from each breach). But for damages, the period is fixed.

For the buyer of a leased property: before buying, check whether there are any encroachments. If the seller-landlord knew of an encroachment for more than 5 years without acting, his claim is time-barred and you will not be able to sue the tenant either, unless you can show a separate personal loss. Therefore, have an accurate inventory of fixtures prepared and ask the seller about any disputes.

For the co-owner: if a co-owner encroaches on the common parts, the action of the co-owners' association is also subject to the five-year limitation period from knowledge. Do not delay in reporting encroachments to the managing agent.

Four Tips to Avoid This Type of Dispute

• Draft a precise lease: describe exactly the leased parts and prohibit any modification without written consent. State that any encroachment is a serious contractual breach.
• Carry out regular inspections: inspect your property at least once a year. If you are in Royan, take the time to visit your tenant. Note the date of each visit and your findings.
• Record the facts in writing: as soon as you suspect an encroachment, send a registered letter with acknowledgement of receipt to your tenant asking for explanations. This will start the limitation period running from that date.
• Act quickly: do not wait until the end of the lease. If the encroachment persists, apply for an interim order to obtain an expert report or an order to stop the disturbance. Even though the 5-year period is long, the sooner you act, the better your chances of obtaining compensation.

In-depth: Related Case Law and Developments

This decision confirms an earlier judgment of the same chamber (Cass. 3e civ., 14 Oct. 2021, No. 20-14.803) which had already held that the landlord's contractual liability claim for encroachment is prescribed by 5 years from knowledge. The Court of Cassation thus aligns the contractual regime with ordinary law, abandoning the specificity of continuous encroachment.

In tort, the previous case law (Cass. 3e civ., 8 Dec. 2010, cited above) remains in force: for a claim based on Article 1240 of the Civil Code (extracontractual liability), the starting point is the cessation of the encroachment. But this distinction is becoming less relevant, since most disputes between landlord and tenant are contractual. The trend of the courts is therefore to favour the five-year limitation from knowledge, which reinforces legal certainty.

For the future, it is possible that the Court of Cassation will completely unify the two regimes, but this has not yet happened. In the meantime, remember that if you are bound by a contract, the period runs from knowledge.

Summary and Next Steps

FAQ:

• What is the time limit to sue a tenant who has encroached? 5 years from the date you became aware of the encroachment.
• What if I discovered the encroachment more than 5 years ago? Your claim for damages is time-barred. You can still seek termination of the lease if the encroachment constitutes a serious breach, but the court may consider that you have tacitly accepted the situation.
• Can I act even if the encroachment continues? Yes, you can act at any time during the 5 years following discovery, even if the encroachment persists.
• What is the cost of court proceedings? Expect between €1,500 and €5,000 in lawyers' fees for a full trial, plus any expert fees (€1,000 to €3,000).
• What if I am a tenant and my landlord wrongly accuses me? You can contest the encroachment and claim damages for abusive proceedings. Consult a lawyer.

Checklist: if you discover an encroachment:

1. Record the date of discovery precisely (photos, bailiff's report).
2. Send a formal notice to the tenant.
3. Consult a lawyer specialised in property law.
4. If the tenant does not restore the premises, bring an interim or full claim before the 5-year period expires.

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 →