Raised Party Wall: Your Rights When a Neighbour Encroaches

Imagine: you own a semi-detached house in Ifs, on the outskirts of Caen. One morning, you see your neighbour starting work to raise his side of the wall that separates you. You soon realise that the new wall encroaches 15 centimetres onto your land instead of the 6 planned. What can you do? Can you demand the demolition of the wall? Or must you settle for damages?

This is exactly the question that arose in a case decided by the Cour de cassation on 3 October 1974 (No. 73-12.010). The judges ruled: it is for the lower courts (i.e., the courts that hear the case at first instance and on appeal) to have the final say on whether to order the demolition of the raising works carried out on a party wall, or whether it is more appropriate to award damages instead. In other words, the aggrieved neighbour does not have an absolute right to demolition.

This decision, although old, remains an essential reference for all property owners faced with an encroachment on their party wall. It gives you the keys to understanding your rights and anticipating possible solutions.

The facts: a story that happens every day

In this case, Mr X owned a house in Ifs. His neighbour, Mr Y, undertook to raise the party wall separating their properties. Problem: the initial project provided for an encroachment of only 6 centimetres beyond the median line (the line separating the two properties). But once the works were completed, the encroachment was 15 centimetres, more than double. Mr X, unhappy, took the matter to court to obtain the demolition of this raised part.

The case was first heard by the Tribunal de grande instance of Caen, then by the Caen Court of Appeal. The lower courts considered that demolition was not necessary and awarded damages to Mr X. Unsatisfied, Mr X appealed to the Cour de cassation, arguing that the law (Article 662 of the Civil Code) required demolition in case of encroachment on a party wall.

But the Cour de cassation dismissed his appeal. It confirmed that the lower courts have the power to decide at their discretion the most appropriate measure: demolition or damages. What matters is the balance between the interests of both parties.

What few people know is that this decision also relied on an expert report that had been carried out. The experts concluded that the raising did not cause serious harm and that its demolition would be disproportionate to the encroachment found.

The reasoning of the court — explained

To understand this decision, we must look at Article 662 of the Civil Code. This provision states that 'one of the co-owners of a party wall may not make any excavation in this wall, nor lean any structure against it, without the consent of the other, on pain of demolition of the structure and damages, if appropriate.' At first glance, demolition seems automatic. But the Cour de cassation interpreted this article more subtly.

In short, the judges considered that demolition is not a mandatory penalty. They have the power to choose another measure, such as damages, if it appears fairer in the circumstances of the case. This is known as the 'sovereign power of appreciation' of the lower courts.

In this case, the Court of Appeal had noted that the encroachment was limited (15 cm), that the works were already completed, and that their demolition would entail significant cost and inconvenience for Mr Y, without providing an equivalent benefit to Mr X. It therefore considered that damages were sufficient to compensate the harm suffered by Mr X.

Note, however: this solution is not systematic. If the encroachment is serious or if the neighbour acted in bad faith, the judges may very well order demolition. It all depends on the facts.

In other words, the Cour de cassation approved a pragmatic approach: the interests at stake must be weighed, and the law should not be applied mechanically.

But what does this actually change for you?

What this changes for you — practically

This decision has significant practical implications, depending on your profile. If you own a property in Ouistreham, for example, and your neighbour raises the party wall without your consent, you will not be able to automatically demand demolition. You will have to show that demolition is necessary to protect your rights.

Landlord: If your tenant notices an encroachment, it is up to you to act. You can claim damages for loss of enjoyment, but demolition will only be ordered if the encroachment is serious (for example, if it blocks a window or encroaches on a habitable part).

Buyer: Before buying a property, check the condition of the party wall. If works were carried out without authorisation, you could inherit a dispute. In my practice, I have come across cases where the buyer had to pay damages because the seller had accepted an encroachment without disclosing it.

Co-owner: In a condominium, the party wall may be common to several units. Any raising must be voted on at a general meeting. If a co-owner acts alone, the others can claim damages, but demolition will rarely be ordered if the works are minor.

In practice, courts set damages based on the loss of value of the property or the inconvenience suffered. For example, for a 15 cm encroachment, one could expect between €1,000 and €5,000, depending on the context.

Four tips to avoid this type of dispute

• Always obtain written consent before carrying out works on a party wall. Even for a simple raising, ask for your neighbour's authorisation in writing (by registered letter or private deed). This will avoid any later dispute.
• Have a joint inspection carried out before and after the works. Take photos, measure the encroachment, and if possible, involve a surveyor. This will serve as evidence in the event of a dispute.
• Check the condominium regulations or the title deed. Some walls may be privately owned and not party walls. Do not assume party wall status.
• In the event of a dispute, propose an amicable solution before going to court. Mediation or conciliation can lead to an agreement (for example, an easement or an indemnity) without legal costs.

Going deeper: related case law and developments

This 1974 decision is part of a consistent line of the Cour de cassation. As early as 1968 (Civ. 3e, 12 June 1968), the judges had affirmed that demolition was not automatic in case of encroachment on an easement. More recently, in a judgment of 10 March 2016 (No. 14-29.125), the Court recalled that the judge may refuse demolition if it is disproportionate to the harm.

The trend is therefore clear: courts favour proportionate compensation, unless there is bad faith or a significant encroachment. This means that property owners must be careful: do not tolerate a minor encroachment in the hope of obtaining demolition, as it may be refused.

In the future, we can expect judges to continue to apply this principle of proportionality, especially with the rise of high-rise construction in dense urban areas.

What you absolutely must remember

1. Demolition of a raised wall is never automatic. The judge may decide to award you damages instead.
2. To obtain demolition, you must prove serious harm (loss of view, sunlight, deterioration of the wall, etc.).
3. Act quickly: if you wait too long (more than 5 years), you risk losing your right to act (limitation period).
4. Keep all evidence: photos, letters, quotes, expert reports.
5. Consult a specialist lawyer to assess your chances before starting proceedings.

FAQ

• Can I demand demolition of the wall if my neighbour has encroached by 10 cm? Not necessarily. The judge may consider that damages are sufficient if the encroachment is minor and without serious consequences.
• What should I do if my neighbour starts works without my consent? Send him a registered letter with acknowledgement of receipt to oppose the works. If he continues, apply to the interim relief judge to obtain a suspension of the works.
• What is the time limit to act? You have 5 years from the date you became aware of the encroachment (Article 2224 of the Civil Code). After this period, you can no longer demand demolition.
• How much does an encroachment lawsuit cost? Lawyer's fees vary between €1,500 and €5,000 depending on complexity. Expert fees (surveyor, architect) can add €1,000 to €3,000.
• Can I obtain damages without demolition? Yes, if the judge considers demolition disproportionate, you can get compensation for the harm suffered (for example, €2,000 for partial loss of view).

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 →