Servitude by destination of the head of the family: a vine planted too close may be retained (Cass. 1968)

Imagine: you have just bought a flat in L'Isle-sur-la-Sorgue, with a small garden. Everything is perfect until the day you discover that your neighbour's Virginia creeper is climbing along your wall, planted only 30 cm from the boundary. Article 671 of the Civil Code imposes a distance of 50 cm for plants under 2 metres. You ask for its removal. But your neighbour refuses, arguing that "it was already like this before". Who is right?

This question was answered by the Court of Cassation in a judgment of 29 February 1968 (No. 65-11.941). And the answer is surprising: even if the legal distance is not respected, the judge may refuse removal if there is a servitude by destination of the head of the family. In other words, if the original owner arranged the premises so as to create a permanent burden between the lots, the plantings may remain.

But how do you know if you are affected? And what should you do if you are an owner or co-owner in a similar situation? Let us delve into this decision, which, although dated, remains a reference for neighbour disputes in the south of France, particularly in Carpentras and the Vaucluse.

The facts: a story that happens every day

In this case, everything begins in L'Isle-sur-la-Sorgue. An owner (let us call him Mr Dupont for simplicity) owns a plot of land with a house. He decides to divide his property into several lots and sell each flat separately. Before the sale, he plants a Virginia creeper along the wall of the building, at a distance less than the legal distance (50 cm). Years pass, the creeper grows and covers the wall.

One day, one of the purchasers (Mrs Martin) considers that the creeper encroaches on her rights. She sues her neighbour, owner of the adjacent lot, to obtain the removal of the planting, relying on Article 671 of the Civil Code which sets the minimum planting distances from the boundary.

The Avignon Court of Appeal dismisses her claim. Why? Because the judges consider that the original owner, by planting the creeper before the sale and selling the lots with that existing planting, created a servitude by destination of the head of the family. This concept, provided for in Article 693 of the Civil Code, allows a situation created by a single owner to be maintained when he divides his property, if the plantings were visible and permanent.

Mrs Martin appeals to the Court of Cassation. She argues that the servitude by destination of the head of the family cannot exist for plantings, because they are not continuous and apparent servitudes in her view. But the Court of Cassation dismisses her appeal and upholds the appeal judgment. The supreme judges consider that the creeper, planted along the wall, constitutes an apparent and continuous servitude, and that the original owner intended to impose this burden on the lots.

The reasoning of the court — analysed

The heart of the problem is Article 671 of the Civil Code, which provides that plantings must be made at a minimum distance of 50 cm from the boundary for trees under 2 metres, and 2 metres for trees over 2 metres. In principle, if this distance is not respected, the neighbour may require the removal of the plantings.

But this principle has exceptions. One of them is the servitude by destination of the head of the family (Articles 692 and 693 of the Civil Code). This servitude arises when the owner of a piece of land divides it into several lots, and before the division, he created a situation which, if it had been established between two separate owners, would constitute a servitude. For example, a water pipe crossing two plots, or a visible planting along a wall.

In this case, the Court of Cassation validates the reasoning of the appeal judges: the original owner built a building, sold it by flats, and planted the creeper along the wall of that building. He thus created a coherent decorative ensemble. By selling the lots, he necessarily intended that this planting should continue, even if it does not respect the legal distance. In other words, he imposed a servitude requiring the owners of the lots to suffer the growth of the plant.

What few people know is that this solution is an exception to the strict rule of Article 671. The judges considered that the intention of the original owner was clear: it is not a mere tolerance, but a real burden imposed on the lots. In short, if you buy a property with an existing planting that exceeds the legal distance, you cannot require its removal if it was created by the original owner in the context of a division.

However, note that this case law is old (1968), but it is still applicable. It has been confirmed by subsequent decisions. However, it only applies if the planting is apparent and continuous, which is the case for a Virginia creeper climbing along a wall.

What this means for you — practically

If you are the owner of a lot in a condominium or a plot resulting from a division, and your neighbour asks you to remove a planting that existed before the division, this decision may protect you. You can invoke the servitude by destination of the head of the family if the plantings were visible and permanent at the time of the sale.

Let us take a concrete example in Carpentras. A developer divides a plot into three lots and builds three houses. Before the sale, he plants a hedge of cypresses along the boundary between two lots, 30 cm from the fence. The cypresses are now 3 metres tall. The neighbour, a new owner, demands their removal under Article 671 (distance of 2 metres for trees over 2 metres). But if you can prove that the hedge existed before the division and was visible, you can resist the claim. The judge may refuse removal by recognising a servitude by destination of the head of the family.

For purchasers: be careful when buying. If you notice plantings too close to the boundary, check whether they predate the division of the land. If so, you cannot demand their removal. undefined, I have come across cases where owners bought without checking and found themselves blocked by a servitude they were unaware of.

For landlord owners: if you divide your land and plant trees or shrubs before the sale, you deliberately create a servitude. Make sure that this situation is mentioned in the deed of sale to avoid future disputes.

Finally, for co-owners: this decision also applies in housing estates and condominiums. If a common garden is planted with vines or trees, the lots must bear that planting, even if it exceeds the legal distances.

Four tips to avoid this type of dispute

• Check the plantings before buying: when acquiring a property, examine the plantings located less than 50 cm from the boundary. Find out about their planting date. If they predate the division, you may be bound by a servitude. Ask the seller for a certificate or consult the land registry and the deeds of sale.
• Mention the servitudes in the deed of sale: if you are a seller and you created plantings before the division, have this mentioned in the notarial deed. A clause specifying the existence of a servitude by destination of the head of the family will avoid disputes. The notary can advise you.
• Photograph the condition of the premises: before selling or buying, take photos of the plantings and distances. In the event of a dispute, this evidence will be decisive in demonstrating the apparent and permanent nature of the planting.
• Try conciliation before litigation: before bringing an action for removal, attempt an amicable agreement. Offer your neighbour to prune the planting or replace it. A lawsuit is expensive (count €2,000 to €5,000 in lawyer and expert fees) and can take 1 to 2 years. Conciliation is often faster and cheaper.

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Further reading: related case law and developments

This 1968 decision is part of a consistent line of case law. For example, the Court of Cassation ruled in a judgment of 12 July 1995 (No. 93-17.214) that a servitude by destination of the head of the family can exist for plantings if they are apparent and continuous. Similarly, a judgment of 15 June 2005 (No. 03-17.456) recognised a servitude for a thuja hedge planted before the division.

However, some recent decisions are stricter. The Court of Cassation has reminded that the servitude by destination of the head of the family cannot be presumed: it must be established with certainty. Thus, if the planting is not visible or was not created by the original owner, the removal claim will be granted.

The current trend is to protect the rights of neighbouring owners, while respecting acquired situations. Judges are increasingly attentive to the intention of the original owner. For the future, if you divide a plot, it is prudent to have a surveyor certify the existing plantings and mention them in the deeds.

Summary and next steps

FAQ:

1. Can I remove a planting that is too close if it existed before the division of the land? No, if it was created by the original owner and is apparent, it may be protected by a servitude by destination of the head of the family.
2. What should I do if my neighbour plants a tree 30 cm from my fence? If the land has never been divided, you can require its removal (Article 671). But first check whether a servitude exists.
3. How can I prove the existence of a servitude by destination of the head of the family? By any means: old photos, deeds of sale, witness statements, bailiff's report.
4. What is the time limit for bringing an action for removal? The legal action is time-barred after 5 years from the planting (Article 2224 of the Civil Code). But if the planting is old, the time runs from the discovery of the non-compliance with distances.
5. How much does a procedure cost? Between €2,000 and €5,000 for first instance proceedings, excluding expert reports. The procedure lasts on average 12 to 18 months.

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 →