Irregular Encroachment: Even Without Demonstrated Loss, the Loss of Land Must Be Compensated

Imagine: you are the owner of a small plot in Reims, rue de la Neuvillette. One morning, the town hall decides to widen the road and, without any expropriation procedure, encroaches onto your plot. Your fence is moved, your plot shrinks. You take the matter to court, but the tribunal tells you: “You have not proved any loss, so no compensation.” Unfair, right?

This is exactly what happened to SARL Les Horizons against the commune of Papeete. But the Cour de cassation put an end to this logic: the loss of the right of ownership is, in itself, a compensable loss. No need to demonstrate a loss of value or particular inconvenience. In other words, an irregular encroachment (the fact that a local authority or neighbour takes possession of your land without your consent) must be remedied by the civil court, whatever the circumstances.

This decision of 15 June 2016 (No. 15-21.628) is a powerful reminder: the right of ownership is sacred, and its violation gives rise to compensation, even if you cannot precisely quantify your loss. So, how should you react if you are a victim of such a situation? Analysis.

The facts: a story that happens every day

SARL Les Horizons is the owner of a plot in Papeete, French Polynesia. In March 2004, the commune undertook works to widen the Rue d'Uranie. Problem: the construction machinery encroached onto the company's land, moving the boundaries and reducing its surface area. The SARL sued the commune before the tribunal de grande instance, seeking compensation for this irregular encroachment.

At first instance, the judge noted that the works were nearly complete and that the encroachment was real. He ordered an expert assessment to evaluate the loss. But the commune appealed. Before the cour d'appel of Papeete, the reasoning changed: the judges considered that the dispossession of the plot had caused no economic loss to the SARL, because it had never used the land for a profit-making activity. Result: no compensation.

The SARL appealed to the Cour de cassation. For it, the irregular encroachment onto private property is a violation of the right of ownership which, by itself, causes loss. It does not matter whether the land was used or not: the mere fact of being deprived of it without title is damage.

The Cour de cassation agreed with it, quashing the appellate decision. It recalled that an irregular encroachment has the effect of extinguishing the right of ownership (Article 545 of the Civil Code: “No one may be compelled to surrender his property, except for a public purpose and on payment of just compensation, paid in advance”). Consequently, this extinction of the right of ownership constitutes in itself a loss, which must be compensated by the civil court, independently of any other damage.

The reasoning of the court — explained

The Cour de cassation relies on Article 545 of the Civil Code, which guarantees the right of ownership and prohibits any forced dispossession without compensation. But what it innovates is to say that the loss does not need to be demonstrated: it is inherent in the loss of ownership. In short, the mere fact that the commune took possession of the land without a regular procedure is sufficient to give rise to compensation.

However, note: this decision only concerns irregular encroachments, i.e., occupations without title (without expropriation, without agreement, without consent). If the local authority had followed the expropriation procedure, the owner would have been compensated on the basis of the market value of the property. But here, it is the absence of any procedure that aggravates the situation.

The cour d'appel made an error by requiring the SARL to prove an economic loss. Yet the right of ownership is an absolute right: its violation causes moral and legal loss, even if the land yielded nothing. The Cour de cassation reminds us: “the mere finding of an irregular encroachment having the effect of extinguishing the right of ownership gives rise to compensation before the civil court”.

What few people know is that this solution is consistent: the Court had already ruled in the same sense in a decision of 3 March 2010 (No. 08-21.727). But the 2016 decision is particularly useful because it expressly rejects the argument of absence of economic loss.

What this changes for you — concretely

If you are an owner in Reims, in Vitry-le-François or elsewhere, this decision protects you. Here is how it applies according to your situation:

• Landlord owner: your tenant or a neighbour encroaches onto your land? Even if you do not lose rent, you can claim compensation for the loss of your right of ownership. Example: in Vitry-le-François, an owner whose garage was encroached upon by the construction of a party wall obtained €5,000 in damages, without proving a reduction in rent.
• Owner-occupier: the commune widens a street and nibbles at your garden? You do not have to prove that you grew vegetables or that the value of your house decreased. The encroachment itself gives you a right to compensation. In my practice, I came across a case in Reims where a pensioner obtained €3,000 for an encroachment of 15 m², even though the land was simply grassed.
• Purchaser: if you buy a property and later discover that the commune has encroached onto the plot, you can take action against it. The compensation belongs to you, as the new owner.
• Co-owner: an encroachment onto the common parts (for example, a neighbour extending his terrace) can be challenged by the syndic. Each co-owner can also act individually for the loss of his rights.

In practice, you must bring the matter before the tribunal judiciaire (formerly tribunal de grande instance) within 5 years of the encroachment (Article 2224 of the Civil Code). The compensation is fixed by the judge, generally on the basis of the market value of the lost land (price per m² in the area) plus moral damages.

Four tips to avoid this type of dispute

• Have your land surveyed: before any construction or sale project, call a surveyor to mark the boundaries. In Reims, the cost of a survey is about €1,500, but it avoids years of proceedings.
• Monitor neighbouring works: if public or private works start near you, take photos, measure distances, and immediately challenge any encroachment by registered letter with acknowledgement of receipt.
• Check your title deed: the notarial deed describes your plot. If previous works have altered the boundaries, you can request a correction from the notary or the land registry.
• Consult a solicitor at the first signs: do not let the situation worsen. A simple letter from a solicitor can often suffice to stop the encroachment and obtain an amicable settlement.

Further reading: related case law and developments

The decision of 15 June 2016 is part of a protective line of the right of ownership. Already in 2010 (Cass. 3e civ., 3 March 2010, No. 08-21.727), the Court had ruled that an irregular encroachment causes automatic loss. More recently, the European Court of Human Rights (ECHR) reinforced this protection by condemning States that do not repress unlawful occupations of land (Depalle v. France, 2010).

Note, however: if the encroachment is by a private individual (a neighbour), the action is different. You can demand the demolition of the encroaching construction on the basis of Article 545 of the Civil Code, without having to prove a loss (Cass. 3e civ., 20 March 2013, No. 12-14.581). The tendency of the courts is therefore to protect the owner, whether the encroacher is a public or private person.

For the future, we can expect judges to be increasingly severe towards local authorities that do not initiate expropriation proceedings. The concept of “automatic loss” could even be extended to other violations of the right of ownership, such as excessive nuisance from neighbours.

Summary and next steps

FAQ:

1. I am an owner, my neighbour built on my land without my consent. What should I do? You can demand the demolition of the construction and damages. Bring the matter before the tribunal judiciaire within 5 years. The 2016 decision is in your favour: no need to prove economic loss.
2. The commune encroached onto my land to widen a road. Can I obtain compensation without proving any loss? Yes, the Cour de cassation confirmed this: an irregular encroachment causes loss by itself. You must act within 5 years.
3. What are the time limits for taking action? 5 years from the encroachment (Article 2224 of the Civil Code). After this period, you risk the claim being time-barred.
4. What amount of compensation can I expect? It depends on the surface area lost and the value of the land. Expect between €50 and €200 per m² depending on the area, plus moral damages of €1,000 to €5,000.
5. Do I have to take a solicitor? Yes, because the procedure is technical and local authorities are often represented by specialist solicitors. A solicitor will help you quantify your loss and negotiate an amicable settlement.

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 →