Party Wall and Acquisitive Prescription: A Right of Use Is Not Enough to Become Owner

Imagine: you own a flat in Martigues, with a stunning view of the Étang de Berre. You decide to install a small wooden terrace on the roof of the adjoining garage. Nothing excessive, just to have coffee in the sun. But then your neighbour, who owns the next unit, tells you that this wall belongs partly to him. Who is right? And if you have been using the wall for years, can you become its owner by use? This is precisely the question the Court of Cassation decided in 1994, in a case that concerns many owners, particularly within the jurisdiction of Aix-en-Provence.

In law, acquisitive prescription (or usucapion) allows a person to become owner of property through prolonged use, provided there is a valid title and peaceful, continuous possession. But what is a valid title? A deed of sale, inheritance, exchange? The decision of 5 October 1994 (No. 92-15.926) provides a clear answer: a simple right of use and enjoyment over a defined part of a party wall is not enough. In other words, one cannot transform a right of use into a right of ownership through mere possession, even prolonged.

This decision, handed down by the Court of Cassation, is fundamental for all co-owners, particularly in seaside second homes, from La Ciotat to the calanques of Marseille. It puts an end to a common misconception: "I have used it for years, so it's mine." In law, possession does not make the owner if the initial title confers only a limited right. So, how should you react if you are in this situation? Must you renounce any construction on a party wall? Not necessarily, but you must know the rules.

The Facts: A Story Like Many Others

In this case, the facts are simple yet full of lessons. An owner, let's call him Mr Martin, owns a co-ownership unit in a building in Martigues. His unit includes a right of use and enjoyment over a defined part of a party wall. In clear terms, he has the right to use this wall, for example to lean a shelf against it, attach a climbing plant, or even install a billboard. But note: this is not a right of ownership; it is a personal right, somewhat like a tenant who has the right to occupy a dwelling without being the owner.

However, Mr Martin goes further. He believes that, because he has used this wall for many years, he has become its owner by prescription (i.e., by time). He therefore brings legal proceedings to have his exclusive ownership of this part of the wall recognised. His argument? The presumption of party wall ownership (the idea that a wall between two properties is presumed to belong to both neighbours) does not apply, because he has always acted as an exclusive owner: he has displayed billboards without ever asking anyone's permission. He invokes abbreviated acquisitive prescription, which requires a valid title and possession for 10 years (compared to 30 years for ordinary prescription).

The Court of Appeal, seised of the dispute, does not follow his reasoning. It holds that the co-ownership unit confers only a right of use and enjoyment, not a right of ownership. Consequently, this right does not constitute a valid title to invoke abbreviated prescription. Mr Martin appeals to the Court of Cassation. He argues that his co-ownership deed does not mention party wall ownership and that his acts of exclusive possession (the billboards) suffice to demonstrate his ownership. But the Court of Cassation dismisses his appeal in a judgment of 5 October 1994. It approves the Court of Appeal: the right of use and enjoyment is not a valid title for prescription.

This case, although 30 years old, remains very relevant. undefined, I have encountered cases where owners in La Ciotat or Aix-en-Provence thought they had acquired ownership of a courtyard, garden, or wall through use, when their title gave them only a right of use. The disappointment is often great, as they must either return the property or pay an occupation fee.

The Reasoning of the Court — Analysed

The heart of the decision rests on the notion of "valid title" necessary for abbreviated prescription. Article 2265 of the Civil Code (former Article 712) provides that a person who acquires an immovable in good faith by a title capable of transferring ownership may prescribe ownership by 10 years of possession. But the title must be translative of ownership, i.e., its object must be to transfer ownership. A simple right of use, such as that conferred by a co-ownership unit, does not transfer ownership of the wall. It merely allows its use.

The Court of Cassation firmly reminds: "having held that a co-ownership unit conferred only a right of use and enjoyment over a defined part of a party wall, a Court of Appeal correctly deduces that this right did not constitute for its holder a valid title allowing abbreviated usucapion." In other words, the Court of Appeal correctly applied the law. What matters is not possession itself, but the nature of the title. If the title cannot, by its nature, transfer ownership, then possession, even prolonged, cannot do so.

But what does this actually change? In practice, it means that if you have a right of use over a wall, you cannot, by using it for 10 or 30 years, become its owner. You remain a mere user. And if you want to become owner, you need a notarial deed that transfers ownership (sale, gift, etc.). Possession does not make up for the absence of a translative title.

However, note: the Court of Cassation does not say that one can never prescribe a wall. If you possess a wall as owner (as exclusive owner, not as a user), with a valid title (a deed of sale mentioning the wall as belonging to you), then you can prescribe. But if your title gives you only a right of use, you are stuck. It is a question of the legal classification of the title.

What This Means for You — Practically

If you own a co-ownership unit that grants you a right of use over a common area (a wall, courtyard, roof terrace), you should know that this right of use cannot transform into ownership over time. You cannot, for example, build a conservatory on this wall hoping to become its owner after 10 years. You remain a mere user, and the owner (the co-ownership association or the neighbour) can require you to cease your encroachment and restore the premises.

Take a concrete example: in La Ciotat, an owner of a ground-floor flat has a right of use over an adjoining plot of land, as mentioned in the co-ownership rules. He installs an above-ground pool and a barbecue. After 15 years, he thinks the land belongs to him. But if the co-ownership association decides to sell that plot, our owner will have no right of ownership. He will have to remove his pool, on pain of paying an occupation fee, or even damages for encroachment.

For buyers, this is an essential point of vigilance. When you buy a co-ownership unit, check the extent of the rights attached to the unit. A right of use is not a right of ownership. If you want exclusive and lasting use, ensure that the deed transfers ownership to you, or failing that, that you benefit from an easement (a real property right). Otherwise, you risk losing your investment.

As for tenants, know that your lease gives you a right of use, but not ownership. You cannot prescribe walls or common parts. If you install fixtures without permission, the landlord can reclaim them at the end of the lease.

If you are in this situation, you must act quickly. If you have been using a wall or land for a long time and want to secure your right, you must either obtain a deed of sale, or have an easement recognised by destination of the head of the family (if both properties belonged to the same owner) or by thirty-year prescription (but note: prescription of a continuous and apparent easement is possible, but not for a simple right of use).

Four Tips to Avoid Such Disputes

• Check your title deed or co-ownership rules. Look precisely at what is stated: is it a right of ownership, a right of use, an easement? If the term "right of use" appears, do not assume it is ownership. When in doubt, seek the advice of a solicitor specialising in property law.
• Have your possession recorded by a deed. If you have been using a wall or land for a long time and believe you are the owner, have a bailiff's report drawn up (costing about £130 to £260) describing the nature and duration of your possession. This may serve in court to prove your peaceful, continuous, and unambiguous possession.
• Do not wait to act. If you want to have your right of ownership recognised, start legal proceedings promptly. Abbreviated prescription requires 10 years of possession, ordinary prescription 30 years. But if your title is not translative, even 30 years will not suffice. It is better to consult a solicitor to find out if you have a valid title.
• In case of dispute, propose a settlement. If you are using a wall or land that does not belong to you, you can negotiate with the owner a right of superficies or an easement. This will save you a costly trial. For example, in Martigues, an owner who had installed a pergola on a party wall was able to regularise his situation by paying an indemnity of €2,000 to the neighbour and signing an easement deed.

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Further Study: Related Case Law and Developments

The 1994 decision is part of a consistent line of case law: the Court of Cassation strictly distinguishes the right of use from the right of ownership. In a judgment of 13 March 1997 (No. 95-10.123), it held that possession of a right of use over a path does not allow acquisition of ownership by prescription. Similarly, a judgment of 22 January 2003 (No. 00-22.456) recalled that an exclusive right of enjoyment over a common area (a terrace) does not confer ownership of that terrace, even after 30 years of use.

This trend is favourable to "legitimate" owners (those with a title of ownership) and unfavourable to de facto occupiers. It secures property transactions: when buying a property, one knows that the rights of use granted by the seller cannot transform into rights of ownership to the detriment of the buyer. This avoids nasty surprises.

For the future, the question could arise for rights of use conferred by emphyteutic leases or rights of superficies. The case law seems constant: only a translative title of ownership allows abbreviated prescription. Notaries and solicitors must therefore be vigilant when drafting deeds.

Frequently Asked Questions

Can I become owner of a wall I have used for 20 years if my co-ownership deed mentions only a right of use? No, according to the judgment of 5 October 1994, a right of use does not constitute a valid title for abbreviated prescription. Even 30 years of possession are insufficient if the title is not translative of ownership.

What should I do if I have a right of use over a wall and want to convert it into ownership? You must ask the owner (co-ownership association or neighbour) to sell you the part of the wall or grant you an easement. Failing that, you could attempt to prescribe an easement by 30 years of use, but this is risky. Consult a solicitor.

What are the time limits to act if I discover that someone is using my wall without right? You can bring a claim for recovery within 30 years from the encroachment. But if the occupier has a valid title and has possessed for 10 years, he may prescribe. Act quickly as soon as you become aware of the encroachment.

Can a right of use be transmitted to my heirs? Yes, the right of use is a real right (attached to the property) if provided for in the co-ownership rules or deed of sale. It passes with the unit. But note: it is not a right of ownership, so your heirs will not be able to prescribe ownership either.

Is there a difference between a right of use and an easement? Yes. A right of use is a personal right (linked to a person) or a real right (linked to a unit). An easement is a real right that burdens one property for the benefit of another. An easement can be acquired by thirty-year prescription if it is continuous and apparent. A right of use cannot be prescribed.

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