Olfactory Nuisances: When an Illicit Manure Heap Poisons the Neighbourhood

Imagine: you have just bought a lovely house in Cabestany, with a garden overlooking a field. The first few weeks, everything is fine. Then, with the first heatwave, an unbearable smell invades your terrace. Your neighbour, a farmer, has installed a manure heap less than five metres from the public road. You ask him to move it. He replies that it has been there for ten years and that you should have checked before buying. Who is right?

This seemingly trivial question was decided by the French Court of Cassation in a judgment of 26 October 1987. And the answer is clear: regardless of the date of installation, if the installation is unlawful under current regulations, its maintenance constitutes a continuing offence. In other words, your neighbour cannot hide behind the age of his manure heap to continue to inconvenience you.

In this article, we will analyse this decision and see what it means for you, whether you are an owner, tenant or property professional. We will see how to assert your rights in the face of persistent nuisances, and how to avoid finding yourself in a similar situation.

The facts: a story like many that happen every day

In this case, an owner, Mr X, operated a manure heap bordering the public road. A manure heap is a place where manure is stored, usually to decompose before being spread. The problem was that this manure heap was located less than five metres from the public road, in breach of a prefectural order containing the departmental health regulations. These regulations imposed a minimum distance to avoid olfactory nuisances and health risks.

A neighbour, whom we will call Mr Y, had been suffering unbearable smells for years. He decided to file a complaint and sue Mr X to obtain the removal of the manure heap and damages. In court, Mr X raised a significant argument: the manure heap existed before the prefectural order came into force. According to him, it was therefore 'acquired' and could not be challenged. He invoked the principle of non-retroactivity of laws: new regulations cannot apply to past situations.

The criminal court, and then the court of appeal, did not follow this reasoning. They ordered Mr X to move his manure heap and pay damages to Mr Y. Why? Because the offence is not the act of having set up the manure heap at the time, but the act of maintaining it in place today. This is known as a continuing offence: as long as the manure heap is there, the offence is renewed every day. The date of installation then becomes irrelevant.

Mr X appealed to the Court of Cassation. He insisted: the regulations cannot apply to a prior installation. But the Court of Cassation dismissed his appeal. It approved the court of appeal: 'the unlawful maintenance of the manure heap necessarily entails, whatever the defendant says, nuisances to the plaintiff's property.' In other words, it is not the installation that is penalised, but the act of allowing a situation contrary to the regulations to persist.

The reasoning of the court — analysed

To understand this judgment, one must grasp the distinction between an instantaneous offence and a continuing offence. An instantaneous offence is a single act that is completed in an instant: for example, theft. Once the theft is committed, the offence is finished. A continuing offence is a situation that lasts over time: for example, construction without a permit, or the maintenance of an unlawful installation. Each day the situation persists, the offence is renewed.

Here, the Court of Cassation applies this concept. It considers that the health regulations (the prefectural order) apply to the present situation: today, the manure heap is less than five metres from the public road. It does not matter that it was installed before the order, since the offence is the maintenance, not the installation. This is an application of the principle of law over time: a new law applies to ongoing situations, as long as it concerns continuing obligations.

On the merits, the Court recalls that olfactory nuisances constitute an abnormal neighbourhood disturbance. Article 1240 of the French Civil Code (formerly 1382) provides that 'any act of a person which causes damage to another obliges the person by whose fault it occurred to make reparation.' Here, the fault is the non-compliance with the health regulations. The damage is the smells suffered by the neighbour. The causal link is obvious: without the manure heap, no smells.

The decision is therefore a classic application of civil liability law, but with an important clarification: the age of the installation does not protect its owner. This is a confirmation of consistent case law on continuing offences. No reversal, but a useful clarification for litigants.

The judges also rejected Mr X's argument that there were no nuisances. The Court of Appeal had found, by unchallenged reasoning, that the smells were real and bothersome. The Court of Cassation does not question this sovereign assessment of the facts. Moral: when the trial judge finds a nuisance, it is difficult to challenge it on appeal.

What this means for you — practically

If you own property that suffers from nuisances (odours, noise, fumes, etc.), this decision is a powerful weapon. You can take action even if the disputed installation is old. The neighbour cannot raise a defence of limitation or prior use. You simply need to prove that the current situation is contrary to the regulations (a prefectural order, a local urban plan, etc.) and that it causes you harm.

Take a concrete example. In Cabestany, an owner rents a studio above a garage. The neighbour, a craftsman, sets up a joinery workshop without respecting safety distances. The noise nuisances are constant. The owner can seek cessation of the activity and damages for loss of rent (e.g., €300 per month for 18 months = €5,400). Even if the workshop existed before the local urban plan, the maintenance of the unlawful activity is a continuing fault.

If you are a tenant, you can also take action. You suffer the nuisances directly. You can sue the offending neighbour, or ask your landlord to intervene (obligation of quiet enjoyment). If the landlord does nothing, you can seek a rent reduction or termination of the lease.

If you are a co-owner, note that the management company can act on behalf of the condominium if the common parts are affected. For example, a badly placed manure heap that stinks up the common parts: the management company can claim damages and seek relocation of the installation.

Be mindful of deadlines: the civil liability claim is subject to a 5-year limitation period from the day the right-holder knew or should have known the facts allowing him to exercise it (Article 2224 of the French Civil Code). For a continuing offence, the starting point is the day the nuisance ceased... or the day you decided to act. Do not delay too long: if you let 5 years pass after the last nuisance, you risk limitation.

Four tips to avoid this type of dispute

• Check applicable regulations before buying or renting. Consult the local urban plan (PLU) and the departmental health regulations. In Le Barcarès, for example, some areas are highly protected. A glance at the land registry and a site visit in hot weather can save you a lot of trouble.
• Document nuisances as soon as they appear. Take photos, videos, have them recorded by a bailiff (count around €150 for a report). A logbook of dates and times of nuisances can be useful. The more evidence you have, the stronger your case.
• Prioritise conciliation before litigation. Send a registered letter with acknowledgement of receipt to your neighbour, explaining the facts and requesting an amicable solution. Propose mediation. Often, a simple lawyer's letter is enough to resolve the problem without legal costs.
• Do not delay taking action. If mediation fails, apply to the judicial court. The cost of an urgent interim application (référé) is limited (a few hundred euros in lawyer's fees). If you win, costs may be awarded against the losing party.

Further reading: related case law and developments

This judgment is part of a consistent line of authority. As early as 1971, the Court of Cassation held that the maintenance of an irregular construction constituted a continuing offence (Civ. 3e, 12 May 1971). More recently, in a judgment of 13 July 2016 (No. 15-18.957), it applied the same reasoning to mobile phone masts installed without permission: regardless of their installation date, maintenance without authorisation is a continuing offence.

The trend is therefore clear: judges protect victims of nuisances by preventing the wrongdoer from hiding behind the age of the installation. This means that if you own a potentially contentious installation, you must ensure it complies with current regulations, even if it existed before. Otherwise, you risk being ordered to demolish or relocate it, with damages to pay.

For the future, this case law is likely to extend to other areas: wind turbines, solar panels, fences... Anything that can cause a continuing nuisance and is subject to evolving regulations is concerned. Hence the importance of staying informed of regulatory changes.

Key points to remember

FAQ:

• Q: My neighbour has an installation that has existed for 20 years, can I force him to move it? A: Yes, if that installation is contrary to current regulations and causes you harm. Age is not a defence.
• Q: What are the time limits for taking action? A: You have 5 years from the last nuisance to bring a liability claim. But act quickly to avoid limitation.
• Q: How much does a court action cost? A: A bailiff's report (approx. €150), lawyer's fees (often €1,500 to €3,000 for a simple case). In interim proceedings, it is cheaper. If you win, you can recover your costs.
• Q: What if I am a tenant and my neighbour is the cause of the nuisances? A: You can take action directly against the neighbour, or ask your landlord to stop the disturbance (obligation of quiet enjoyment). If the landlord does not respond, you can seek a rent reduction.
• Q: What if I am the owner of the disputed installation? A: Bring it into compliance as soon as possible. Consult a lawyer to assess your risks. Simply moving the manure heap can save you an expensive lawsuit.

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 →