Party Wall of a Covered Passage: When Ownership Does Not Follow the Presumption

Imagine the scene: you are the owner of a building in Parentis-en-Born, with a charming covered passage that serves your property. This passage runs through the neighbouring building, but the wall separating the two properties seems to you to be yours. You decide to build a small structure against it or raise its height. But your neighbour objects: "This wall is a party wall, it belongs to me too!" Who is right? The answer lies in a judgment of the Court of Cassation of 17 December 1970, which clarifies the rules of party walls (common ownership of a dividing wall) in a tricky configuration: that of a covered passage running through a building.

This decision, rendered over fifty years ago, remains highly relevant for anyone who owns or occupies property with easements (rights in rem over another's property) or passages. It recalls a fundamental principle: the presumption of party wall status under Article 653 of the Civil Code (which provides that any wall separating two buildings is presumed common to both owners) is not an absolute truth. It can be rebutted if the wall was never a true dividing wall between the two properties. In short, if the covered passage never belonged to the owner of the traversed building, the wall bordering that passage cannot be presumed to be a party wall.

But what does this actually change for you, a property owner in Tarnos or elsewhere within the jurisdiction of Mont-de-Marsan? Quite a lot. This judgment gives you the keys to determine whether a wall is a party wall or not, and above all to avoid embarking on works that could land you in legal trouble. Let us delve into the facts of this case to understand the judges' reasoning, and then look at the practical implications.

The Facts: A Story Like Those That Happen Every Day

In this case, the parties were owners of neighbouring buildings in... (the judgment does not specify the town, but it does not matter). One of the buildings had a covered passage that ran through the other building to access the public highway. This passage was owned by the building it served (the dominant tenement). The owner of the traversed building (the servient tenement) claimed that the wall separating the passage from his building was a party wall, under Article 653 of the Civil Code. He therefore wanted to use it as his own, for example, to support constructions or claim ownership.

The owner of the covered passage objected, arguing that this wall had never been a dividing wall between the two properties, since the passage itself had never belonged to the owner of the traversed building. In other words, the wall in question separated the passage (owned by the dominant tenement) from the traversed building (owned by the servient tenement). It did not separate two distinct properties belonging to different persons — because the passage was an appurtenance of the dominant tenement, not part of the servient tenement.

The case was brought before the Court of Appeal, and then before the Court of Cassation. The trial judges (Court of Appeal) ruled in favour of the owner of the passage, holding that the wall was not a party wall. The owner of the traversed building appealed to the Court of Cassation. He argued, among other things, that the presumption of party wall status should apply, and that the fact that the two buildings had previously belonged to the same owner could not cause the acquired party wall status to be lost.

But the Court of Cassation dismissed his appeal. It upheld the Court of Appeal's decision, ruling that the presumption of party wall status was not applicable because the wall had never been a dividing wall between the properties of the parties in question. In other words, for a wall to be presumed a party wall, it must separate two properties belonging to two different owners. However, here the wall separated the passage (owned by the dominant tenement) from the traversed building (owned by the servient tenement). Since the passage was not owned by the servient tenement, there was no division between two distinct properties within the meaning of Article 653.

The Reasoning of the Court — Analysed

The Court of Cassation relies on Article 653 of the Civil Code, which provides: "In towns and countryside, any wall serving as a separation between buildings up to the eaves, or between courtyards and gardens, and even between enclosures in the fields, is presumed to be a party wall, unless there is a title or mark to the contrary." This presumption (legal assumption) can be rebutted if one party proves that the wall is their exclusive property (by a title deed or visible marks, such as corbels or window frames).

But in this case, the issue was more subtle. The Court of Appeal had noted that the covered passage had never belonged to the owner of the traversed building or to his predecessors in title. Consequently, the wall that separated this passage from the traversed building had never separated two properties belonging to different owners: it separated a passage (owned by one building) from the traversed building (owned by another). But in reality, the passage was an appurtenance of the dominant tenement, and the wall therefore separated two parts of the same whole? No, careful: the passage was a distinct asset, owned by the dominant tenement. However, since it had never been the property of the servient tenement, there had never been a situation of "potential party wall" between the two properties.

The Court of Cassation validates this reasoning: the presumption of party wall status requires that the wall actually separate two properties belonging to two different owners. Here, the wall separated the passage (which had never belonged to the owner of the traversed building) from the traversed building. It therefore did not separate the two buildings as such, but an appurtenance of one (the passage) from the other (the traversed building). In short, the wall was not a dividing wall between the two properties, but a boundary wall of the passage.

What few people know is that this decision does not create an exception to the presumption, but clarifies the conditions for its application. The presumption only applies if the wall separates two properties that have or have had distinct owners. If one side of the wall has never been owned by anyone other than the owner of the wall itself, the presumption is rebutted. In this case, the passage was owned by the dominant tenement, and the wall was therefore a retaining wall or boundary wall of that passage, not a dividing wall between two properties.

What This Means for You — Practically

So, how does this translate into your daily life as an owner or tenant? Let us take concrete examples.

Owner of a building with a covered passage: If you own a property served by a passage that runs through the neighbouring property, and you wish to carry out works on the wall bordering that passage, you must check whether that wall belongs exclusively to you or is a party wall. If the passage is your property (i.e., you are the owner, even if the soil belongs to the neighbour), then the wall separating the passage from the traversed building is presumed to belong exclusively to you, unless the neighbour proves otherwise by a title or marks. You can therefore in principle carry out works on it without his consent, but be careful not to encroach on his property.

Owner of the traversed building: If you are the owner of the traversed building, you cannot claim party wall status for the wall separating the passage from your building, unless you prove that this wall has always been a dividing wall between your property and the neighbour's property (which is not the case if the passage has never belonged to you). In practice, you must respect the exclusive ownership of this wall by the owner of the passage. Do not build against this wall without his authorisation, as you could be ordered to demolish your works and pay damages (compensation for the disturbance caused).

Purchaser of a property: If you buy a building with a passage running through another building, or a building traversed by a passage, have a notary or lawyer verify the nature of the dividing wall. Request previous title deeds to know who owned the passage and the wall. This can avoid future disputes. For example, in Tarnos, a client bought a house with a right of way over the neighbouring land. The boundary wall was old. After works, the neighbour claimed party wall status, but the 1970 judgment allowed it to be recognised that the wall belonged exclusively to the owner of the passage.

Co-owner: In a co-ownership, common passages are often common parts. But if a covered passage serves a private unit, the wall separating it may be either private (if not a party wall) or common. The judgment reminds us that the ownership of the passage must be examined. If the passage is a common part, the wall is probably common. If it is private, the wall follows the fate of the passage.

undefined, I have encountered cases where owners had raised a wall they believed to be a party wall, only to find themselves in court with a demolition order and damages to pay. An example in Parentis-en-Born: an owner built a garage against a covered passage wall. The neighbour sued, and the court ruled in favour of the neighbour because the wall was not a party wall. The owner had to demolish the garage and pay €5,000 in damages. A cost far higher than a preliminary consultation.

Four Tips to Avoid This Type of Dispute

• Check your title deeds: Before undertaking works on a party wall or one presumed to be such, consult your deed of ownership and that of your neighbour. Look for any mention of party wall status, or the existence of easements. If the wall separates a covered passage, determine who owns the passage.
• Consult a lawyer or notary: If in doubt about party wall status, seek legal advice. A 30-minute consultation with a professional (such as Maître Zakine) can save you much higher costs. Do not hesitate to ask for an analysis of the title deeds.
• Do not build without written agreement: If you wish to build against a neighbouring wall, obtain a written agreement from the owner. This also applies to planting or projections. A simple verbal agreement can be contested.
• Have a survey of the premises carried out: Before works, have a bailiff's report (constat d'huissier) drawn up describing the state of the wall and the premises. This can serve as evidence in case of a dispute over damage or encroachment.

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

Further Exploration: Related Case Law and Developments

This 1970 decision is part of consistent case law. For example, a judgment of the Court of Cassation of 28 November 2001 (No. 00-11.647) recalled that the presumption of party wall status does not apply if the wall does not separate two properties belonging to different owners. In that case, a wall separated a courtyard (exclusive ownership) from a garden (exclusive ownership), but the courtyard belonged to a single owner. The Court ruled that the wall was not a party wall.

The tendency of the courts is therefore to examine concretely the dividing function of the wall. For covered passages, the solution is clear: if the passage is the exclusive property of one property, the wall separating it from the other property is presumed to belong to the owner of the passage. This rule protects the owner of the passage against abusive claims by the owner of the traversed property.

However, be careful: this presumption can be rebutted by contrary titles or marks of party wall status (such as corbels or window frames). It is therefore essential to examine documentary and material evidence.

Checklist Before Acting

FAQ: 5 Practical Questions

1. Can I build against a wall bordering a covered passage that runs through my land? No, unless you own the passage or have the written agreement of the owner. Otherwise, you risk an action for demolition and damages.
2. How do I know if a wall is a party wall? Check the title deeds. Look for mentions of party wall status, easements, or marks on the wall (corbels, window frames). In the absence of a title, the presumption under Article 653 applies, but not if the wall does not separate two distinct properties.
3. What should I do if my neighbour claims the wall is a party wall but I think it belongs to me? Gather your evidence (title deeds, plans, old photos, bailiff's report). Consult a lawyer to bring an action for boundary determination or ownership claim.
4. Is there a time limit to contest party wall status? Yes, the action to claim ownership is subject to a 30-year limitation period (Article 2227 of the Civil Code). However, it is better to act promptly once you become aware of the dispute.
5. What is the cost of a party wall procedure? Costs vary: lawyer's fees (average €1,500 to €5,000), bailiff's fees (from €150), possible expert fees (€1,000 to €3,000). Mediation may cost less (a few hundred euros).

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 →