Extinctive Prescription and Easement: What to Do If Your Neighbour Has Let Things Be for 30 Years?

Imagine: you are the owner of a lovely house in Périgueux, in the historic district. For decades, the cornice of the neighbouring building has overhung your garden. One day, you decide to carry out works and have it removed. Your neighbour, who had let it be for over thirty years, suddenly demands its restoration. Does he have the right to do so? This is precisely the question that the French Supreme Court ruled on in a judgment of 22 March 1972. This decision, although over fifty years old, remains highly relevant for all property owners faced with encroachments or de facto easements.

The question every owner asks: “Can my neighbour require me to put back an element that encroached on my land for years, simply because I tolerated it?” The answer is no, unless an exception applies. But be careful: everything depends on the usefulness of the encroachment for the tenement that benefits from it. This judgment teaches us that prolonged possession does not suffice to create a right if it brings no concrete advantage to the dominant tenement.

What exactly does the judgment say? In clear terms: a person who has successfully raised the defence of extinctive prescription (i.e., the fact that the neighbour's action is time-barred because it is too late) to preserve an encroachment cannot subsequently, once the neighbour has put an end to that encroachment, demand its restoration. Why? Because he cannot rely on a useful possession (i.e., a possession that is continuous, peaceful, public, unambiguous, and as owner) to acquire an easement by prescription, and because the previous state brought no advantage for the use, utility or enjoyment of his tenement. Let us break this down.

The Facts: A Common Story

In this case, two adjoining houses in Bordeaux (within the jurisdiction of the Bordeaux Court of Appeal) are separated by a party wall. The roof of one of the houses, belonging to the Y. spouses, rests on this wall and extends beyond it, creating a cornice that overhangs the neighbouring tenement, owned by the Z. heirs. This situation has lasted for more than thirty years. One day, the Z. heirs decide to carry out works and remove the part of the cornice that encroached on their land. The Y. spouses react: they sue their neighbours to obtain the restoration of the cornice, arguing that they have acquired an easement by thirty-year prescription (continuous possession for 30 years).

The Y. spouses had, however, succeeded in a previous proceeding in raising the defence of extinctive prescription against the action of the Z. heirs who sought the removal of the cornice. In other words, they had won on the ground of prescription to prevent removal. But once the neighbours had finally removed the encroachment, they wanted it restored. The Bordeaux Court of Appeal dismissed their claim, and the Y. spouses appealed to the Supreme Court.

The appeal argued that the co-owner of a party wall has the right to repair the wall on his own initiative, and that the new roof edge (part of the roof) had been installed to protect the party wall from the elements. But the Supreme Court dismissed the appeal, upholding the Court of Appeal's decision. For the Court, even if the wall is a party wall, the cornice encroached on the neighbouring land, and the Y. spouses could not rely on useful possession to acquire an easement, because that encroachment brought no advantage to their tenement.

The Court's Reasoning — Analysed

The reasoning of the Supreme Court rests on several legal foundations. First, acquisitive prescription (or usucapion) allows the acquisition of a real property right, such as an easement, by continuous and uninterrupted possession for 30 years (Article 2261 of the Civil Code, formerly Article 2229). But for possession to be useful for prescription, it must be “continuous and uninterrupted, peaceful, public, unambiguous, and as owner.”

In this case, the Y. spouses had indeed possessed the cornice for more than 30 years, but was that possession useful? The Court says no, because the encroachment (the overhang) brought no advantage for the use, utility or enjoyment of their tenement. In other words, the cornice served no purpose for the Y. spouses' house: it did not improve habitability, did not significantly protect against the elements, and had no essential aesthetic function. It was just there, by the tolerance of the neighbours.

What few people know is that acquisitive prescription of an easement requires possession “as owner,” meaning that the possessor behaves as if the right belonged to him, without recognising the right of the owner of the servient tenement. But above all, the easement must be of utility to the dominant tenement. Article 686 of the Civil Code provides that easements are established for the use and utility of an inheritance. If the encroachment brings no advantage, it cannot give rise to an easement by prescription.

In other words, the Supreme Court considered that the Y. spouses could not, on one hand, rely on extinctive prescription to prevent removal of the cornice (by saying “you waited too long to act”), and on the other hand, demand its restoration by invoking acquisitive possession. There is a form of contradiction: if the possession was useful for acquiring an easement, why did they raise extinctive prescription? In reality, the two concepts are distinct: extinctive prescription extinguishes the neighbour's action, but does not create a right. Possession must be examined independently.

This decision confirms constant case law: mere tolerance does not create a right, and acquisitive prescription of an easement requires real utility for the dominant tenement. This is a shift from earlier decisions that more readily admitted prescription in cases of prolonged possession. Here, the Court insists on the absence of advantage, which restricts the possibilities of acquiring easements by prescription.

What This Means for You — Practical Implications

So, what are the practical implications of this judgment? If you own property in Bordeaux, Périgueux or elsewhere, and you notice that your neighbour has installed an element (cornice, balcony, gutter, etc.) that encroaches on your land for a long time, know that you can act to have it removed, but be careful of time limits: the action for demolition is subject to a 30-year limitation period (under general law). If you let this period pass, you can no longer demand removal, but your neighbour cannot demand restoration either if you remove the encroachment one day, unless that encroachment brings him real utility.

Let us take a concrete example: in Bordeaux, in the Chartrons district, Mr Dupont has a balcony that overhangs Mrs Martin's garden by 20 cm for 40 years. Mrs Martin, fed up, decides to build a fence that cuts off the balcony. Can Mr Dupont demand restoration of the balcony? No, according to this judgment, because the balcony brings him no particular advantage: it could have been built without encroaching. On the other hand, if the balcony is essential for accessing a terrace, the utility would be established.

If you are a buyer, be vigilant: before buying a property, check for any encroachments. A seller might hide that the cornice encroaches on the neighbour's land, but that the neighbour never acted. You could inherit a dispute. Have a boundary survey and a statement of easements carried out.

For co-owners, be careful with works on common parts: if a party wall cornice encroaches on neighbouring land, the co-ownership may be required to remove it. But if the encroachment has lasted more than 30 years, the neighbour can no longer act, but the co-ownership cannot demand its maintenance either.

undefined, I have encountered cases where owners had let things be for years, then, after a change of neighbours, found themselves in proceedings. The 1972 judgment is often invoked to dismiss claims for restoration. It is therefore essential not to rely on mere tolerance.

Four Tips to Avoid This Type of Dispute

• Have encroachments recorded by a surveyor as soon as you become aware of them. A boundary survey or a joint inspection will establish the situation and start the limitation periods running with full knowledge. In Périgueux, expect to pay between €800 and €1,500 for a boundary survey.
• Do not wait 30 years to act. The action for removal of an encroachment is subject to a 30-year limitation period (formerly 30 years, now also 30 years under new law). If you let this period pass, you lose your right to act. But you can also attempt an amicable negotiation beforehand.
• If you tolerate something, formalise it by agreement. If you accept that your neighbour installs a cornice on your property, sign an encroachment agreement or an easement. This will avoid any ambiguity and allow you to set conditions (duration, maintenance, etc.).
• Before buying a property, check easements and encroachments. Ask the seller for a declaration on the state of easements, and have a technical inspection carried out. In Bordeaux, many old houses have undeclared encroachments, which can become a source of conflict.

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Further Analysis: Related Case Law and Developments

This 1972 decision is part of a consistent line of case law. For example, a judgment of the Supreme Court of 10 March 1993 (No. 91-12.947) held that acquisitive prescription of a right of view can only operate if the view is useful to the dominant tenement. Similarly, in a judgment of 14 November 2012 (No. 11-23.403), the Court recalled that possession must be useful, i.e., bring an advantage. The trend is therefore towards strict control of the utility of the easement.

On the other hand, some decisions have admitted prescription for minor but old encroachments, such as gutters or balconies, as long as they were essential for water drainage or access. But the rule remains the requirement of utility. Since the 2021 reform of property law, the rules on prescription have been simplified, but the substance remains the same: 30 years of possession are necessary to prescribe an easement, and utility remains a key element.

For the future, it is likely that the courts will continue to require real and not hypothetical utility, especially in matters of encroachment. Owners must therefore be vigilant and not rely on mere tolerance to create rights.

Key Points to Remember

FAQ

1. Can I acquire an easement by prescription if my neighbour tolerates an encroachment for 30 years?
Yes, but only if that encroachment brings utility to your tenement (e.g., access, water drainage, view). Without utility, the possession will not be useful and you cannot acquire the easement.

2. What should I do if my neighbour has installed a cornice that encroaches on my land for 40 years?
You can no longer sue to have it removed (extinctive prescription). But you can remove it yourself, and your neighbour cannot demand its restoration if it has no utility for him.

3. What is the time limit to sue for removal of an encroachment?
The time limit is 30 years from the encroachment. After that period, the action is time-barred.

4. Is an amicable agreement possible to regularise an encroachment?
Yes, you can sign an encroachment agreement or establish an easement. This secures the situation and avoids future disputes.

5. Is the 1972 judgment still applicable today?
Yes, it remains relevant and is regularly cited by the courts. The 2021 reform of property law did not overturn this principle.

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