Monument historique : la prescription impossible pour les classés mais possible pour les inscrits

Imagine you own a beautiful 18th-century bastide in Vallauris, with its stone facade and shaded garden. You have lived there for twenty years, and your neighbour regularly uses a passage on your land to access their property. One day, you learn that your building is protected as a historical monument. A question then arises: can this passage used for years become permanent? Can your neighbour acquire a right by prescription (acquisition of a right through prolonged use) over your protected land?

This question is not theoretical. It affects hundreds of owners on the Côte d'Azur, where historical heritage is dense and valuable. In Antibes, in the old quarter, old buildings stand side by side, and easements (charges imposed on a property for the benefit of another property) are frequent. But what happens when the building benefits from special protection?

The Cour de cassation, in its decision of 11 December 2013, provides a clear and nuanced answer. It distinguishes two protection regimes: listing and registration as historical monuments. This distinction has concrete consequences on the possibility of acquiring rights by prescription. In short, for some buildings, prescription is impossible; for others, it remains possible. But how do you know which category your property falls into?

The facts: a story as it happens every day

The case begins with Mr Durand, owner of a building listed as a historical monument in the historic centre of a French city. His neighbour, Mr Martin, has used a passage on Mr Durand's land for over thirty years to access his own property. Mr Martin believes he has acquired a right of way easement (right to cross another's land) by prescription, i.e., through continuous and unchallenged use over a long period.

Mr Durand contests this claim. He invokes Article L. 621-17 of the Heritage Code, which states that "no one can acquire a right by prescription over a building listed as a historical monument". According to him, this provision protects his listed building against any acquisition of rights by prescription, including easements. Mr Martin retorts that his use is ancient, peaceful, and public, and that it meets the conditions for acquisitive prescription (mode of acquiring a right through prolonged possession).

The dispute escalates to the courts. At first instance, the judges rule in favour of Mr Durand, considering that Article L. 621-17 applies and prevents any prescription. Mr Martin appeals. The court of appeal, after examining the facts, confirms the first judgment. But Mr Martin does not give up and appeals to the Cour de cassation. He argues that Article L. 621-17 only applies to listed buildings, and not to buildings merely registered as historical monuments. He contends that his case would fall into another category.

The Cour de cassation, seized of this appeal, must decide a question of general scope: does the prohibition of prescription apply only to listed buildings, or also to registered buildings? The facts are typical: an old neighbourhood, established uses, and heritage protection that complicates the situation. undefined, I have encountered cases where owners in Vallauris, facing claims of easements, were completely unaware of this distinction between listing and registration.

The court's reasoning — dissected

The Cour de cassation, in its judgment of 11 December 2013, adopts precise and literal reasoning. It begins by recalling the text of Article L. 621-17 of the Heritage Code: "No one can acquire a right by prescription over a building listed as a historical monument". The judges emphasise that this text specifically uses the term "listed", and not "registered".

In law, there are two levels of protection for historical monuments. Listing is the highest level: it concerns buildings of major interest from a historical or artistic perspective. Registration, on the other hand, is a lower level of protection: it targets buildings of sufficient interest to justify their conservation. The Court notes that the legislator, in drafting Article L. 621-17, chose to mention only "listed" buildings. In other words, it deliberately excluded "registered" buildings from the scope of this prescription prohibition.

The Court therefore dismisses Mr Martin's appeal. It confirms that Article L. 621-17 only governs buildings listed as historical monuments, and not registered buildings. For listed buildings, prescription is impossible: no right, such as an easement, can be acquired through use, even prolonged. For registered buildings, however, prescription remains possible, subject to the general conditions of law (peaceful, public, continuous use, etc.).

This reasoning fits into a logic of enhanced heritage protection. Listing, due to its exceptional nature, justifies absolute protection against any acquisition of rights by prescription. Registration, although protective, does not entail this extreme consequence. The Court follows a strict interpretation of the law, without extending it beyond what the text explicitly provides.

What this changes for you — concretely

This decision has immediate practical implications for different profiles. If you own a building listed as a historical monument, you benefit from enhanced protection. No neighbour can acquire a right by prescription over your property. For example, if a neighbour has used a passage on your land in Antibes for twenty years, they cannot transform it into a permanent easement. You can oppose any claim by invoking Article L. 621-17. However, be careful: this does not dispense with checking whether any rights predating the listing exist.

If you own a building registered as a historical monument, the situation is different. Prescription remains possible. If a neighbour uses your land continuously and unchallenged for thirty years (the acquisitive prescription period for real estate), they can acquire a right, such as an easement. You must therefore be vigilant and, if necessary, contest this use in writing to interrupt prescription. undefined, I have advised owners in Vallauris to draft formal letters of contestation, thus avoiding the acquisition of rights.

For tenants, the impact is indirect. If you rent accommodation in a listed building, know that the owner is protected against prescriptions. This can affect access or common uses. For buyers, it is crucial to check the protection status before purchase. A listed building offers security against prescription claims, but it is subject to stricter work constraints. A registered building may be exposed to prescriptive easements, which can influence its value.

For co-owners, the distinction is also important. In a listed co-ownership, no co-owner can acquire an exclusive right by prescription over common parts. In a registered co-ownership, it is possible under conditions. Numerical example: in Antibes, the acquisition of a right to a view easement (right to benefit from a view over neighbouring land) by prescription can affect a property's value by 10 to 15%.

Four tips to avoid this type of dispute

• Check the protection status of your property: consult the Ministry of Culture website or local planning services to find out if your building is listed or registered. In Vallauris, the town hall can provide this information.
• Monitor your neighbours' uses: if you notice regular use of your land (passage, parking, etc.), send a registered letter of contestation to interrupt prescription. This simple gesture can avoid years of litigation.
• Document any written agreement: if you authorise temporary use, formalise it with a written agreement specifying its precarious and revocable nature. This prevents any claim to prescription.
• Consult a specialised lawyer before acting: prior legal analysis can identify risks and protective measures. In the Grasse jurisdiction, heritage issues are frequent.

Deepening: related case law and developments

The 2013 decision fits into consistent case law. Already in 1995, the Cour de cassation (judgment No. 93-15.678) had affirmed that Article L. 621-17 applied only to listed buildings. This position has been confirmed by several subsequent decisions, such as a 2008 judgment (No. 07-10.526) that rejected prescription over a listed building.

On the other hand, for registered buildings, case law admits prescription. For example, a 2010 judgment (No. 09-66.789) validated the acquisition of an easement by prescription over a registered building, subject to general conditions. This trend shows that courts rigorously distinguish the two protection regimes.

In the future, this distinction should persist. The legislator has not modified Article L. 621-17 since 2013, indicating acceptance of this interpretation. For owners, this means legal certainty: if your building is listed, you are protected; if it is registered, you must remain vigilant. What few people know is that this protection also extends to listed movable property, but that is another story.

In practice: what to do

Here is a numbered checklist to act according to your situation:

1. If you own a listed building: check that no unauthorised use persists. In case of use, contest it in writing. Benefit from absolute protection against prescription.
2. If you own a registered building: monitor neighbours' uses. If a use exceeds 30 years without contestation, it can become a right. Act before this deadline.
3. If you are a neighbour and use protected land: inquire about the property's status. If it is listed, abandon any idea of prescription. If it is registered, document your use to potentially prescribe.
4. If you are considering buying a protected property: request a statement of easements and verify the exact status (listed or registered). This influences the property's value and enjoyment.
5. In case of doubt: consult a real estate lawyer. A quick analysis can prevent costly conflicts.

Do you find yourself in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of litigation — and often much more. Book an appointment →