Servitude of Common Courtyard: When Non-Compliant Construction Justifies Demolition

Imagine: you are a property owner in Colomiers, near Toulouse. You have granted your neighbour a servitude of common courtyard so that he can build his swimming pool on the boundary of your land, complying with regulatory distances. In exchange, he undertakes to build at a precise location. But a few months later, you notice that the pool has been shifted, a technical room has been moved, and a window has been opened giving a direct view into your home. What can you do? This decision of the Court of Cassation of 28 March 2024 gives you weapons: non-performance of the undertaking can justify demolition of the structure.

But what exactly does this change? Until now, many thought that once construction was complete, it was too late to go back. The high court reminds us that this is not the case: where the servitude is reciprocal, the beneficiary must scrupulously respect the agreed location. In other words, if your neighbour does not keep his word, you can require reinstatement, even if that means demolition.

What few people know is that this decision applies to all conventional servitudes, not only those related to planning law. It also concerns landlord owners, co-owners, and any holder of a real property right. So, how should you react if you are in this situation? Read on.

The Facts: A Story That Happens Every Day

Mr and Mrs S. are owners of a plot of land in Muret, a suburb of Toulouse. Their neighbour, the civil real estate company (SCI) X, wishes to build a swimming pool and a technical room near the boundary. To comply with the regulatory distances imposed by the local planning scheme (PLU), the SCI asks Mr and Mrs S. to grant a servitude of common courtyard, provided for in Article L. 471-1 of the French Planning Code. This text allows a servitude to be imposed on a servient tenement to permit construction on the property boundary, provided that the owner of the dominant tenement (the one building) undertakes to respect the agreed location.

In 2018, a notarial deed is signed: Mr and Mrs S. grant the servitude, and the SCI undertakes to build the pool and the technical room at a precise location, and not to create a direct view. But as soon as the works are completed, the S. spouses notice that the pool has been moved several metres, the technical room is in a different place, and a window has been opened giving a direct view over their garden. They sue the SCI to obtain demolition of the non-compliant structures.

The first instance court rules in their favour, but the Toulouse Court of Appeal partially reverses the judgment. According to the Court of Appeal, the SCI did indeed change the location, but this does not justify total demolition. The S. spouses appeal to the Court of Cassation. The Court of Cassation sets aside the appeal judgment and remits the case. It holds that the non-performance of the reciprocal obligation to respect the agreed location is capable of justifying demolition, to the extent necessary to comply with the agreement.

The Reasoning of the Court — Analysed

The Court of Cassation relies on Article 1240 of the Civil Code (liability for fault) and on Article L. 471-1 of the Planning Code. The latter provides that the owner who grants a servitude of common courtyard may impose conditions, in particular the location of the construction. In return, the owner of the dominant tenement is obliged to respect these conditions. The Court states that this obligation is reciprocal and essential: without it, the servitude loses its balance.

In this case, the Court of Appeal had held that the SCI had committed a fault, but that demolition was not proportionate. The Court of Cassation censures this approach: as soon as the agreed location is not respected, the owner of the servient tenement (the one who granted the servitude) may require reinstatement, even if this involves demolition. In other words, the sanction is automatic, without having to prove specific damage. This is an evolution from previous case law, which often required proof of serious harm.

Note, however: the Court does not say that any modification justifies total demolition. It specifies that demolition must be "necessary to comply with the agreement". Thus, if the shift is minimal and does not affect the balance of the servitude, the judge could order less radical works. But in our case, the moving of the pool and the creation of an unauthorised view justify reinstatement.

undefined, I have encountered cases where owners in Muret or Colomiers had granted a servitude without formalising the exact location. Result: years of litigation to determine what had been verbally agreed. This decision reminds us of the importance of a precise notarial deed.

What This Changes for You — Concretely

If you are a landlord owner: have you granted a servitude to allow your tenant or a neighbour to build? You can require strict compliance with the undertakings. Example: in Colomiers, an owner granted a servitude for a garden shed. The neighbour built a garage instead. Thanks to this decision, the owner can demand demolition of the garage, without having to prove financial loss.

If you are a tenant: do you benefit from a servitude granted by the owner? Be careful: you must comply with the conditions, on pain of lease termination or demolition of the construction. For example, in Muret, a tenant moved a fence without authorisation. The landlord was able to obtain reinstatement based on this case law.

If you are a buyer: before buying a plot of land, check the existing servitudes. A seller could be required to guarantee performance of the obligations. In case of non-compliance, you can take action against the beneficiary of the servitude.

If you are a co-owner: servitudes of common courtyard may exist between units. A co-owner who modifies his works without respecting the agreed location risks a demolition action by the co-owners' association.

In practice, the time limit to act is 5 years from the construction (Article 2224 of the Civil Code). Legal costs can vary from €3,000 to €10,000, but a preliminary 45-minute consultation with a lawyer lawyer (about €150) can avoid an expensive trial.

Four Tips to Avoid This Type of Dispute

• Formalise the precise location in the notarial deed: do not settle for a rough plan. Have a dimensioned plan drawn up by a surveyor, with exact distances from boundaries. This avoids any contestation.
• Photograph the premises before and after the works: keep dated images (e.g., via a mobile app) to prove the initial state. In case of dispute, this evidence is essential.
• Include a resolutory clause: in the servitude deed, insert a clause that automatically provides for demolition in case of non-compliance. This facilitates obtaining a court decision.
• Consult a lawyer before signing: a professional can identify pitfalls and negotiate protective conditions. For example, in Muret, an owner avoided a 5-year dispute thanks to a prior mediation clause.

Further Study: Related Case Law and Developments

This decision is part of a recent trend by the Court of Cassation to reinforce the effect of agreements in matters of servitudes. For example, in a decision of 10 March 2021 (No. 19-20.115), the Court had already held that non-compliance with a right of way servitude justified demolition of a structure. However, that decision was less precise on the notion of proportionality.

Conversely, some Courts of Appeal had previously required serious harm to order demolition. The decision of 28 March 2024 puts an end to this divergence: the mere non-performance of the obligation suffices, provided that demolition is necessary. This means that courts will now have to verify whether the construction complies with the agreed location, not whether the harm is significant.

In the future, we can expect owners to be more vigilant when drafting servitude deeds. Notaries will also have to be more precise in describing obligations. Finally, this case law could apply to other types of servitudes, such as servitudes of view or right of way.

What You Absolutely Must Remember

Practical FAQ:

• Can I demand demolition if my neighbour moved his construction by 50 cm? Yes, if the location was precisely agreed. The judge will assess whether demolition is necessary. It is better to act quickly.
• What if my neighbour refuses to demolish? File an urgent application with the judicial court (référé) to obtain an expert assessment and a demolition order. Expect 3 to 6 months for a decision.
• What are the time limits to act? 5 years from completion of the works (Article 2224 of the Civil Code). After this period, you risk losing your right.
• How much does a procedure cost? Between €3,000 and €10,000 depending on complexity. A preliminary consultation (€150) can avoid a trial.
• Can I defend myself alone? Not recommended: the law of servitudes is technical. A lawyer specialised in property law is essential.

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

Checklist if you are faced with a non-compliant construction:

1. Check the notarial deed: is the location precise?
2. Record the differences with photos and a bailiff's report.
3. Send a formal notice by registered letter to the neighbour to reinstate.
4. Consult a lawyer to take legal action if necessary.

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 →