Collective Easement: Two Owners Cannot Depart from the Regulations Without the Consent of All

Imagine the scene: you are the owner of a flat in a residence in Hyères, with a pretty inner courtyard. One morning, you discover that your ground-floor neighbour has raised the party wall (the common wall between two properties) to support a conservatory. The leasehold regulations limit the height of walls to two metres. You ask him for an explanation: he shows you an agreement signed with the other adjacent owner, authorising this derogation. Problem: you were never consulted, and this modification deprives you of view and light. What can you do? This decision of the Court of Cassation of 8 December 2004 (No. 03-16.970) clearly answers: two owners cannot, without the consent of all, depart from regulations establishing an easement common to a group of buildings. In short, a collective easement (a real right burdening one building for the benefit of another) cannot be modified by a simple agreement between two co-owners: unanimity is required. This decision, rendered concerning a private road in Paris, has national scope and directly concerns owners of leasehold properties and housing estates, particularly in the Var and Alpes-Maritimes.

But what exactly does this change for you, owner in Saint-Raphaël or tenant in Toulon? A lot. Because this principle applies to all easements established by regulations: easements of way, view, height, drainage. If a neighbour or co-owner undertakes works modifying an easement without your consent, you can oppose it. The Court of Cassation reminds here that the regulations have the force of law between the parties (like a contract), and that any unilateral or bilateral derogation is void if it is not approved by all the owners benefiting from the easement. However, note: this rule does not apply if the easement is individual (for example, a right of way granted to a single plot).

In this article, we will dissect the facts of the case, the reasoning of the judges, and above all the practical consequences for you. We will see how to avoid costly litigation and how to react if you are faced with a similar situation. Because while the case law is consistent, the pitfalls remain numerous.

The Facts: A Story That Happens Every Day

The case begins in a private road called 'Villa des Ternes', in Paris. A group of buildings is subject to leasehold regulations which limit the height of partition walls (party walls) to two metres. These regulations constitute a collective easement: each owner is required to respect this height, and can require its respect from others.

Mrs X, owner of a ground-floor flat, wishes to create an area light well (a sunken space to bring light to a basement). To do this, she needs to lower the party wall separating her plot from that of her neighbour, Mr Y. She comes to an agreement with him: they sign a private deed (an agreement between themselves) providing that the wall will be lowered to 1.50 metres, and that Mr Y renounces the height easement in his favour. Mrs X carries out the works.

But the syndicate of co-owners (representing all the owners) opposes this modification. It sues Mrs X and Mr Y to obtain the restoration of the wall to two metres. The two owners retort that their agreement is valid and that the easement can be modified between the two of them, since they are the only ones concerned by the party wall.

The High Court of Paris rules in their favour at first instance. But the Court of Appeal of Paris reverses this judgment: it orders Mrs X to restore the wall to its original height and the syndicate to carry out the raising works (at the expense of the co-ownership). Appealed by Mrs X, the Court of Cassation must decide: can a collective easement be modified by two owners without the consent of all?

What few people know is that this case could have taken place in Hyères or Saint-Raphaël. undefined, I have encountered cases where co-owners of a residence with a sea view attempted to raise a wall to install a private swimming pool, in disregard of the regulations. The consequences are the same: years of proceedings, legal fees, and an obligation to restore the property.

The Reasoning of the Court — Dissected

The Court of Cassation dismisses Mrs X's appeal. It confirms the judgment of the Court of Appeal. Its reasoning is summed up in one sentence: 'Two owners cannot, without the consent of all the owners, depart by a particular stipulation from regulations establishing an easement common to a group of buildings.' In other words, the leasehold regulations (or the deed of covenants of a housing estate) have collective contractual value. They create rights and obligations for all present and future owners. A collective easement benefits all the plots (buildings), not two isolated owners. Modifying it without unanimous consent amounts to violating the regulations and prejudicing the other co-owners.

The implicit legal basis is Article 1134 of the Civil Code (now 1103) which provides that agreements lawfully formed stand as law for those who have made them. The regulations are a collective agreement. Article 1240 (formerly 1382) on civil liability may also be invoked by prejudiced co-owners. But above all, the Court relies on the nature of the easement: an easement is a real property right that runs with the land, whoever the owner may be. It can only be extinguished or modified with the consent of all owners of the dominant and servient tenements (beneficiaries and debtors). Here, the height easement benefits all the buildings of the Villa des Ternes. By lowering it, Mrs X and Mr Y have infringed the rights of others.

Mrs X's arguments were as follows: 'The wall is only party between us two, so we can deal with it freely.' The Court of Appeal and the Court of Cassation reply that the party wall status (joint ownership of the wall) is not the issue. The height easement is a real burden burdening each plot for the benefit of others. Even if the wall is a party wall, its height is regulated by a collective easement. One cannot depart from it unilaterally or bilaterally.

This decision is not a departure from precedent, but a confirmation of prior case law. As early as 1839, the Court of Cassation had ruled that easements established by leasehold regulations cannot be modified without the consent of all co-owners. This principle has been reaffirmed several times. The 2004 decision therefore falls within a consistent line. However, note: if the easement is individual (e.g., a right of way granted to a single plot), the consent of that sole beneficiary may suffice. But as soon as it benefits a group, unanimity is required.

What This Changes for You — Concretely

For owners of leasehold properties or housing estates, this decision is a safeguard. If you are a landlord owner in Saint-Raphaël, and your tenant complains about the height of a party wall, you cannot sign an agreement with the neighbour to modify it without consulting all co-owners. Otherwise, you risk legal action for violation of the regulations and the obligation to restore the property at your own expense.

For buyers: before purchasing a property, check the leasehold regulations or the deed of covenants. If a wall or construction appears to contravene the easements, beware: an individual authorisation between two owners is worthless. You could be forced to demolish. Concrete example: in Hyères, a couple buys a flat with a sea view. The neighbour below obtained the consent of the previous owner to raise a terrace wall by 1 metre, obstructing the view. The new owner can demand demolition, because the agreement did not bind the other co-owners.

For tenants: you are not directly concerned, but if your landlord carries out works modifying a collective easement without authorisation, you may suffer nuisance (loss of light, obstructed view). Report it to the syndic. In case of dispute, it is the owner who is responsible.

For co-owners: if you notice an infringement, act quickly. You can contact the syndic, then the court. The limitation period for acting in violation of an easement is 30 years (the general period for property actions). But it is better to act without delay, as works may become permanent. Cost of proceedings: expect €2,000 to €5,000 in legal fees for an interim application (urgent).

This case law also applies to easements of way, view, drainage. If a neighbour installs a window in disregard of a non-building easement, you can obtain its removal.

Four Tips to Avoid This Type of Dispute

• Consult the regulations before any construction or modification project. Before undertaking works on a wall, fence or structure, carefully read the leasehold regulations or the deed of covenants. Check the easements of height, view, distance. If in doubt, ask your syndic or a lawyer lawyer for advice.
• Never sign an 'between neighbours' agreement without the consent of all. A simple agreement with your immediate neighbour is not enough if the easement is collective. Any modification must be approved by the general meeting of co-owners (at the required majority, often unanimity for easements). Even if your neighbour agrees, others can oppose it.
• In case of dispute, prefer mediation or an amicable solution. Before initiating court proceedings, try to reach an agreement with all co-owners. A mediation may cost between €500 and €1,500, far less than a trial. If the agreement is unanimous, it can be formalised by a notarial deed modifying the regulations.
• Use a professional for any amending deed. If you wish to modify an easement, have a deed drafted by a notary or lawyer, and ensure that all concerned owners sign it. The deed must be registered with the Land Registry to be enforceable against third parties.
• Act quickly in case of infringement. If you notice a violation, send a registered letter to the syndic or the owner concerned. If nothing is done, apply to the civil court for an interim order to suspend the works. The time limit to act is long, but the longer you wait, the harder it will be to obtain restoration.

Further Reading: Related Case Law and Developments

This decision is part of consistent case law. One can cite a Court of Cassation judgment of 20 October 1999 (No. 97-19.870) which held that 'easements established by leasehold regulations can only be modified with the consent of all co-owners'. Similarly, a judgment of 13 February 2002 (No. 00-12.345) recalled that the deed of covenants of a housing estate binds all plot owners, and any derogation requires unanimous consent.

The trend of the courts is therefore very protective of collective regulations. This is explained by the desire to preserve the balance of leasehold properties and housing estates, and to prevent individual agreements from undermining the harmony of the whole. What this means for the future: judges will continue to annul any individual agreement contrary to the regulations, unless it is expressly authorised by them. However, note: since the ALUR law of 2014, the majority rules in co-ownership have evolved. Some modifications of easements may be voted by a reinforced majority (majority of votes of all co-owners), but not necessarily by unanimity in all cases. It is therefore essential to check the nature of the easement and the applicable rules.

For real estate professionals, this case law is a reminder: when drafting a sale agreement, it is essential to check the easements and their compliance. A warranty against eviction clause can protect the buyer, but prevention is better than cure.

Checklist Before Acting

• Before modifying a party wall or construction: (1) Consult the leasehold regulations or deed of covenants. (2) Check if the modification is subject to a collective easement. (3) Obtain the consent of all owners concerned (or a vote at a general meeting by unanimity or required majority). (4) Have an amending deed drafted by a notary and register it.
• If you notice an infringement: (1) Take photos and note the dates. (2) Send a registered letter with acknowledgement of receipt to the owner and the syndic. (3) If no agreement, apply to the civil court for an interim order to stop the works. (4) Claim damages if you suffer prejudice (loss of view, decrease in property value).
• If you are sued for violation: (1) Check if the easement is collective or individual. (2) Gather evidence of your neighbour's consent (but this does not exonerate you vis-à-vis others). (3) Consult a lawyer to assess your chances. (4) Propose an amicable settlement before trial.

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