Acquisitive Prescription Interrupted by an Interim Expert Determination: What You Need to Know

Imagine: you own a beautiful villa in Six-Fours-les-Plages, with a sea view. One day, you notice that your neighbour has built a wall that encroaches 50 centimetres onto your land. You speak to him about it, he ignores you. Months pass, then years. You hesitate to start proceedings, fearing the costs and time. And what if, in the meantime, your neighbour ends up becoming the owner of this strip of land simply through the passage of time? This is the question raised by acquisitive prescription (or usucapion), the mechanism that allows one to acquire property through prolonged possession. But good news comes from the Court of Cassation: a simple application for an interim expert determination, that is, a request to the judge to establish the facts before a trial, is sufficient to interrupt the limitation period. In other words, you do not need to immediately bring a substantive claim: a swift and inexpensive action can save your rights.

The facts: a story that happens every day

Mr and Mrs X are owners of a registered plot (identified in the land registry) in Six-Fours-les-Plages, neighbouring that of Mr H. The latter owns land that serves another property. One day, Mr H. notices that the wall built by Mr and Mrs X encroaches onto his plot. He reports this encroachment, but his neighbours do not react. What to do? Mr H. chooses to summon his neighbours in interim proceedings for an expert determination (an urgent procedure to appoint an expert who will establish the facts). The expert is appointed, the report is prepared: the encroachment is confirmed. But in the meantime, nearly thirty years have passed since the wall was built. Mr and Mrs X then invoke thirty-year acquisitive prescription (30 years of peaceful and continuous possession to become owner). The Aix-en-Provence Court of Appeal rules in their favour, considering that the interim expert determination does not interrupt the prescription. Mr H. appeals to the Court of Cassation. The Court of Cassation, in its judgment of 29 June 2023, quashes the appeal decision and affirms that the application for an interim expert determination does interrupt the acquisitive prescription. A victory for Mr H., but also for all owners faced with an encroachment.

The reasoning of the court — analysed

The Court of Cassation relies on Article 2241, paragraph 1, of the Civil Code (which provides that a claim in court, even in interim proceedings, interrupts the limitation period). It recalls that any legal action, whether substantive or interim, interrupts the prescription. In this case, the application for an interim expert determination aimed to establish proof of an encroachment before any trial. This request seeks recognition of a right (the right of ownership) and therefore constitutes an interrupting legal claim. The judges specify that it does not matter that the substantive claim was not immediately brought: the interruption is effective as soon as the interim application is made. In doing so, the Court of Cassation confirms constant case law but applies it to a particular case, acquisitive prescription. In short, it puts a stop to the temptation to let time pass: the owner who acts in interim proceedings stops the 30-year clock. However, note: the interruption is only definitive if the substantive claim is brought within two years following the interim proceedings (Article 2243 of the Civil Code). What few people know is that this rule also applies to possessory actions (such as denunciation of new works). undefined, I have encountered cases where owners in Draguignan lost their right due to failing to bring the substantive claim in time.

What this changes for you — practically

For the owner victim of an encroachment: you no longer need to fear that time will work against you. A simple application for an interim expert determination (cost: approximately €500 to €1,500) interrupts the prescription. Example: in Draguignan, an owner noticed a 2 m² encroachment. He applied for an interim expert determination for €1,200. The expert confirmed the encroachment. He then brought the substantive claim within two years. Result: he obtained the demolition of the wall and €5,000 in damages. Without the interim proceedings, he would have lost the land after 30 years.

For the owner who encroaches (or possesses without title): beware, a simple interim application is enough to interrupt your prescription. You can no longer rely on time to regularise your situation. If you are in this situation, you must check whether an interim action has been brought against you. If so, the limitation period is interrupted and you cannot invoke usucapion.

For the purchaser: before buying a property, check whether there are ongoing interim actions. An interim expert determination may reveal future encroachments. Ask your notary to check the land registry and ongoing proceedings.

For the co-owner: if common parts are encroached upon, the management company can act in interim proceedings without waiting for the general meeting. This interrupts the prescription on behalf of all co-owners.

Four tips to avoid this type of dispute

• Have encroachments recorded as soon as possible: as soon as you suspect an encroachment, call in a chartered surveyor for an amicable boundary survey (cost: €1,500 to €3,000). This record will serve as evidence and can be used in interim proceedings.
• Act quickly: do not wait. As soon as the encroachment is discovered, consult a solicitor specialising in property law. An application for an interim expert determination can be served within a few days.
• Do not neglect deadlines: after the interim proceedings, you have two years to bring the substantive claim. Note this date in your diary. A mistake and everything must start again.
• Anticipate neighbour disputes: before building, carry out a joint boundary survey (signed by both neighbours). This avoids 90% of encroachment disputes. In Six-Fours-les-Plages, many conflicts arise from poorly defined party walls.

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

Further analysis: related case law and developments

This decision is part of a protective trend for the aggrieved owner. In 2018, the Court of Cassation had already ruled that an application for an interim payment (to obtain an advance on damages) interrupts the prescription (Civ. 3e, 4 October 2018, No. 17-22.936). However, a simple registered letter or mediation does not interrupt the prescription. The judges are strict: only a formal court claim interrupts the limitation period. In the future, courts are likely to be even more vigilant about the interrupting effect of preparatory acts. However, note: if the interim application is dismissed for lack of standing, the interruption is annulled. It is therefore crucial to properly characterise your action.

Checklist before acting

FAQ:

Q: Can I wait several years before acting against an encroachment?
A: Yes, but the risk is that your neighbour may acquire the land by prescription after 30 years. If you act in interim proceedings before the 30 years, you interrupt the limitation period. It is better not to wait.

Q: What if I have already let 30 years pass?
A: The prescription is acquired, unless you can demonstrate an interruption (procedural act, acknowledgment of right). Consult a solicitor quickly.

Q: Is the interim expert determination compulsory?
A: No, but it is very useful to obtain solid evidence before a trial. It also allows negotiation of an amicable agreement based on the expert report.

Q: How much does an interim application cost?
A: Allow between €500 and €1,500 for the application (excluding solicitor's fees). The expert determination costs on average €1,500 to €3,000, shared between the parties.

Q: Can I act alone or do I need a solicitor?
A: In interim proceedings, a solicitor is compulsory before the judicial court. For small areas, you can try free conciliation first.

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 →