Public Works on Private Land: When the Judicial Judge is Incompetent

Imagine: you own a piece of land in Montargis, in the Loiret. One morning, you discover that the intercommunal water syndicate has run a pipeline under your meadow without your permission. You are furious, you want it removed. You take the matter to the judicial court. But surprise: the judge tells you he can do nothing. Why? Because the pipeline is a "public work" and, even if installed without title, it does not constitute a "voie de fait" that would allow the judicial judge to intervene. This is exactly what the Court of Cassation decided on 11 October 2018 (No. 17-17.806).

This decision is a headache for landowners. How do you defend yourself when the administration occupies your property without right? The answer is less simple than it seems: you must address the administrative judge, not the judicial judge. And the time limit to act is often very short (2 months from discovery).

In this article, we will dissect this case, understand the magistrates' reasoning, and above all give you concrete advice to avoid or manage such situations. Because in Fleury-les-Aubrais as elsewhere, conflicts between private owners and public services are more frequent than one might think.

The Facts: A Story Like Many Others

Mr. X and Mrs. Y are owners of plots located in Saint-Bénin-des-Bois, in the Nièvre. For decades, a drinking water pipeline has crossed their land, installed by the intercommunal drinking water supply syndicate (SIAEP). One day, they discover that this pipeline was laid without any official easement or occupation title. They ask the syndicate to remove it. Faced with refusal, they sue the syndicate before the tribunal de grande instance (now tribunal judiciaire) to obtain the removal of the work and damages.

The syndicate retorts that there is a legal easement created by a prefectural decree of 1949 establishing the syndicate. But the couple contests the existence of this easement, arguing that it was never formalised in their title deed. The tribunal judiciaire of Nevers declares itself incompetent in favour of the administrative judge. The couple appeal, but the Bourges Court of Appeal confirms the incompetence. For it, the pipeline is a public work, and its installation, even without title, is not a voie de fait (a serious act manifestly incapable of being linked to a power of the administration).

The couple appeal to the Court of Cassation. They argue that the absence of an occupation title constitutes a voie de fait, because the administration acted outside any power. The Court of Cassation dismisses their appeal on 11 October 2018: the installation of a public work on the land of a private person, even without title, is an act that relates to the public service mission (here, the distribution of drinking water). It is therefore not a voie de fait, and the judicial judge is incompetent. Only the administrative judge can hear the case.

The Reasoning of the Court — Analysed

The Court of Cassation relies on the theory of voie de fait, a key concept of administrative law. Voie de fait is characterised by two cumulative elements: on the one hand, an administrative decision manifestly incapable of being linked to a power of the administration (for example, a seizure of property without any legal basis), and on the other, a serious infringement of the right to property or a fundamental freedom. In this case, the Court considers that the installation of a drinking water pipeline is an activity that relates to the public service mission of water distribution. Even in the absence of title (easement or agreement), the administration does not act outside any power: it exercises a legal competence. Therefore, no voie de fait.

This reasoning is not new. It is part of a consistent line of case law from the Court of Cassation and the Conseil d'État which tends to limit voie de fait to prevent the judicial judge from interfering in administrative action. In 2015, the Tribunal des Conflits already ruled that the occupation without title of land by a water pipeline falls within administrative jurisdiction (TC, 9 November 2015, No. 4000).

The couple invoked Article 544 of the Civil Code (right of property) and Article 1 of Protocol No. 1 of the European Convention on Human Rights (protection of property). But the Court of Cassation considered that the infringement of property was not sufficiently serious to constitute a voie de fait, especially since the pipeline was old and the couple had the possibility of seeking compensation before the administrative judge.

In practice, this decision means that the owner cannot obtain the removal of the work from the judicial judge. He must apply to the administrative court, but beware: the time limit for appeal is 2 months from the discovery of the work (or from the notification of a refusal). After this period, the work may become legal by prescription (theory of irregular occupation).

What This Changes for You — Concretely

This decision has major implications for owners, but also for tenants and buyers.

Landlord Owner: If you discover that a public pipeline crosses your land without title, you cannot demand its removal by the judicial judge. You must apply to the administrative court within 2 months. In practice, if the work was installed more than 2 months ago, your appeal will likely be inadmissible. You can still claim compensation for occupation without title, but here again, the administrative judge is competent.

Buyer: Before buying land, check for visible easements (pipelines, pylons, etc.). If a public pipeline crosses the property without a registered easement, know that the seller should have informed you. You could bring an action for latent defects, but for removal, you will be dependent on the administrative judge. In Fleury-les-Aubrais, a client recently bought land with an undeclared water pipeline: he could not obtain its removal, having failed to act within 2 months.

Tenant: Are you suffering from nuisances due to a public work (leak, subsidence)? You can inform the owner, who must act against the administration. In the meantime, you can ask for a rent reduction or damages from the owner, but removal of the work is not your responsibility.

Co-owner: If a public work crosses the common parts, it is the syndic who must act. But be careful: decisions to take legal action must be voted on at a general meeting. Do not wait until the situation worsens.

Example: Mr. Z, owner in Montargis, suffered a loss in value of €15,000 on his land due to an undeclared pipeline. By acting quickly before the administrative judge, he obtained €8,000 in compensation. But he had to keep the pipeline.

Four Tips to Avoid This Type of Dispute

• Before buying, have the easements checked by a notary. A surveyor can also detect buried networks. If an easement is missing, require the seller to regularise it before the sale.
• If you discover a work without title, act within 2 months. Send a registered letter to the administration (commune, syndicate) contesting the occupation. Keep proof of the date of discovery (photos, witnesses).
• Consult a lawyer specialised in property and administrative law. Your lawyer can determine the jurisdiction of the judge (administrative or judicial) and the possible remedies (compensation, removal).
• When selling, mention any easement or occupation in the deed. Failure to inform may incur liability for deceit or latent defect. A client in Fleury-les-Aubrais had to pay €20,000 in damages for hiding a pipeline.

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

Further Reading: Related Case Law and Developments

This decision is in line with a consistent line of case law. The Tribunal des Conflits, in a decision of 9 November 2015 (No. 4000), had already ruled that the occupation without title of land by a drinking water pipeline does not constitute a voie de fait. The Court of Cassation confirms this approach, insisting on the connection to the public service mission.

However, some recent decisions show an evolution: if the public work is installed on private land without any authorisation and causes serious and special damage (e.g., destruction of the house), the judicial judge may sometimes be competent on the basis of voie de fait, but this is rare. The trend is towards protecting administrative action, even at the expense of owners' rights.

For the future, one can expect that the distinction between voie de fait and simple irregular occupation will remain subtle. Owners must therefore be particularly vigilant and act quickly.

What You Absolutely Must Remember

FAQ:

1. Can I obtain the removal of a public pipeline installed without title on my land? No, if it is considered a public work. The judicial judge is incompetent. You must apply to the administrative judge within 2 months, but removal is rarely ordered (public interest). You can obtain compensation.

2. What if I discovered a pipeline more than 2 months ago? Your annulment appeal is likely inadmissible. You can still claim compensation for occupation without title before the administrative judge, but the limitation period is 5 years (general law).

3. What is the cost of an action before the administrative judge? Legal costs are modest (about €500 to €1,500 for a lawyer for an initial consultation and a claim). If you win, the administration may be ordered to reimburse part of the costs.

4. Can I sell my land with a public pipeline without title? Yes, but you must inform the buyer. Otherwise, you risk an action for latent defects or deceit. Better to regularise the situation before the sale.

5. Can the administrative judge order removal? Theoretically yes, if the work is illegal and causes excessive harm. But in practice, judges prefer regularisation (obtaining an easement) or compensation.

Are you in a similar situation? A 30-minute initial consultation with Maître Zakine (€45) may save you months of proceedings — and often much more. Book an appointment →