Irregular Encroachment and Trespass: How to Obtain Compensation for Land Damage

Imagine: you return home to Labège and discover that your neighbour has built a wall that encroaches two metres onto your land. Or worse, that the town hall of Toulouse has installed an electrical transformer on a plot you own without asking your permission. What can you do? How much can you claim? This question, which hundreds of landowners ask each year, found a clear answer in a judgment of the French Supreme Court (Cour de cassation) dated 26 January 1972 (No. 70-12.072).

The problem is simple: when someone encroaches on your land, the damage suffered must be compensated. But how do you assess this damage? Should the assessment be made on the date the encroachment occurred, or on the date the expert observes the facts? And what if the land has changed in nature in the meantime — for example, if it was agricultural at the time of the encroachment and is now developable? The decision of 26 January 1972 provides a nuanced solution that protects both the landowner and the person responsible for the encroachment.

In this article, I will explain exactly what the Supreme Court said, how it applies in practice in Toulouse and elsewhere, and most importantly what you should do if you are a victim — or accused — of an encroachment or irregular occupation (occupation of land without right).

The Facts: A Story That Happens Every Day

Mr X, owner of a plot of land in Labège, found part of his plot occupied without his consent by his neighbour, Mr Y, who had built a structure on it. Mr X then sued Mr Y in court to obtain the demolition of the encroachment and damages (a sum of money to compensate for the loss suffered).

The court of first instance (the Toulouse High Court (tribunal de grande instance) at the time) ordered an expert appraisal to value the land. The experts valued the land as of the date of their appraisal, i.e., several years after the encroachment. But Mr Y objected: according to him, the valuation should be made as of the date of the encroachment, because the land had increased in value in the meantime. Mr X, on the other hand, considered that the compensation should take into account the current value.

The case went up to the Supreme Court. It had to decide: on what date should the damage resulting from an irregular occupation (occupation without right) or encroachment (overhanging of construction) be assessed?

The Reasoning of the Court — Analysed

The Supreme Court upheld the decision of the Court of Appeal: the trial judges (those who examine the facts) had correctly applied the rules of tort liability (the obligation to compensate for damage caused by one's fault, provided for in Article 1240 of the Civil Code — formerly 1382). Specifically, the Court of Appeal had instructed the experts to value the land as of the date of their appraisal, but specified that they should take into account the nature and condition of the land as of the date of the harmful event (the encroachment).

In other words: the value of the land is fixed at the time the expert intervenes, but no account is taken of changes that may have affected it after the encroachment. If the land was agricultural at the time of the encroachment and subsequently became developable, this increase in value is not taken into account, because it is not a direct consequence of the encroachment. On the other hand, if the land has simply increased in value with the market, this increase is included in the valuation.

This solution is logical: it prevents the landowner from being unjustly enriched at the expense of the person responsible for the encroachment, while guaranteeing full compensation for the damage suffered. It is in line with the classic case law of the Supreme Court, which applies the principle of full compensation (the landowner must be restored to the situation that would have existed without the encroachment).

The arguments of both parties were clear-cut: Mr Y wanted a valuation as of the date of the encroachment to limit his compensation; Mr X wanted the most recent valuation to maximise his rights. The Court chose a middle path: valuation as of the date of the expert appraisal, but eliminating changes in the nature of the land after the encroachment.

What This Means for You — In Practice

This decision has important practical implications for several profiles.

Landlord: if a tenant or neighbour encroaches on your land, the compensation you receive will be calculated on the current value of the land, but without taking into account transformations (for example, if you had obtained a building permit after the encroachment that would have made the land developable). Worked example: agricultural land in Labège was worth €10/m² in 2010. In 2020, it is worth €50/m² because the market has risen. If the encroachment occurred in 2010, the expert appraisal in 2020 will retain €50/m². But if the land was reclassified as developable in 2015, this increase in value will not be taken into account: the expert will retain the agricultural value in 2020, i.e., approximately €15/m² (because the market alone has increased little for agricultural land).

Tenant: if you are a tenant and have carried out works that encroach on a neighbour's land, you will be responsible for the encroachment towards that neighbour. The compensation will be calculated according to the same rules. Be careful: your lease may provide that you must restore the premises on departure, but this does not extinguish your obligation towards the neighbour.

Purchaser: before buying a property in Toulouse, check that there is no encroachment. An unregularised encroachment can lead to an action for demolition or compensation. If you buy without knowing, you may be required to compensate for the damage. Have a boundary survey (official delimitation of property boundaries) carried out by a surveyor (géomètre-expert).

Co-owner: in a co-ownership, an encroachment can concern common or private parts. If a co-owner encroaches on a common part, the managing agent (syndic) can take legal action. The compensation will be paid to the co-owners' association (syndicat des copropriétaires) and not to the individual co-owner.

Four Tips to Avoid This Type of Dispute

• Have your land surveyed before any construction project. Boundary demarcation (official delimitation of boundaries) carried out by a surveyor is the only reliable proof of your rights. Without a boundary survey, an encroachment can go unnoticed for years and cost a lot.
• Keep all documents relating to your land. Deed of sale, cadastral plans, building permits, old photos: these elements help prove the nature and condition of the land at a given date, which is crucial for assessing the damage.
• If an encroachment is discovered, act quickly. Legal action must be brought within 5 years from the discovery of the encroachment (standard limitation period). If you let this period pass, you lose all right to compensation.
• Negotiate an amicable solution before going to court. A written agreement (for example, an easement of way or a transfer of land) can avoid lawyer and expert costs. However, have a specialised lawyer assist you in drafting the deed.

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

Further Reading: Related Case Law and Developments

This 1972 decision is still relevant today. It has been confirmed by subsequent judgments, notably by the Supreme Court in a judgment of 8 July 2009 (No. 08-16.808) which recalls that the damage resulting from an encroachment must be assessed as of the date of the court decision, but taking into account only the condition of the property as of the date of the encroachment.

Another important decision is that of the Supreme Court of 10 September 2015 (No. 14-18.492) which specifies that for encroachments on public property (for example, a construction that overhangs a public road), the rules are different: compensation is often a fixed amount and may be higher.

The current trend of the courts is towards increased protection of the landowner: encroachment is considered a voie de fait (serious illegal act) which can justify substantial damages, or even the demolition of the construction. However, judges ensure that compensation does not become a source of unjust enrichment.

Frequently Asked Questions

1. Can I obtain the demolition of a construction that encroaches on my land? Yes, that is the default right. Demolition is the most complete form of restitution in kind. However, if the encroachment is minimal and demolition would cause disproportionate cost, the judge may award you damages instead. This is a matter for the trial judges' discretion.
2. What should I do if I discover an encroachment after buying the land? You can take action against your seller for hidden defects (latent defect rendering the property unfit for use) or against the person responsible for the encroachment. Be mindful of time limits: you have 5 years from discovery to act. Consult a lawyer promptly.
3. What are the costs of an encroachment proceeding? Costs include lawyer's fees (often between €1,000 and €5,000 depending on complexity), court-appointed expert fees (about €1,500 to €3,000) and surveyor fees (€500 to €1,500). The losing party may be ordered to pay these costs, but nothing is guaranteed.
4. Is encroachment always a fault? Yes, in principle. Encroachment is a violation of the right of property, which constitutes a fault within the meaning of Article 1240 of the Civil Code. Even if the encroachment is unintentional (boundary error), liability is engaged. Only the absence of fault (force majeure) could exonerate.
5. Can I regularise an encroachment after the fact? Yes, by selling the encroached plot or by creating an easement (right of way, for example). This requires the owner's agreement and a notarial deed. The compensation is freely negotiated.

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 →