Estate Development Easement: A Proprietor Cannot Unilaterally Waive It

Imagine the scene: you buy a lovely villa in a quiet estate development in Grasse, with views of the hills. The specifications provide for a 2-metre non-building zone along the property boundary. Your neighbour, with whom you get on well, says: “No problem, I’m happy for you to build your loggia right up to the boundary.” You start the work. A few months later, another neighbour, or worse, the local authority, serves you with a notice to demolish. But how is that possible, since your immediate neighbour had agreed?

This is precisely the question the French Supreme Court decided on 27 September 1983 (appeal no. 82-11.175). And its answer is unequivocal: in an estate development, the easements provided for in the specifications are not private arrangements between neighbours. They bind all the plots reciprocally. A single plot owner cannot waive them unilaterally. In other words, your neighbour’s agreement is not enough.

Although old, this decision remains an absolute reference. It is regularly invoked before the courts in Grasse, Nice and elsewhere. So what does it actually mean for you, as an owner or buyer in an estate development? We explain everything.

The facts: a story that happens every day

We are in the 1980s. An estate development is created, with a set of specifications defining internal planning rules. Among them, a non-building zone (or zone non aedificandi) is imposed along certain plot boundaries. Mr X, owner of one plot, decides to build a loggia, partly within this zone. His immediate neighbour, Mr Y, does not object. On the contrary, he gives his written consent.

But another plot owner, Mr Z, considering that this building work violates the specifications, sues Mr X to obtain demolition of the loggia. Mr X defends himself by relying on Mr Y’s agreement, as the owner of the immediately adjacent land. According to him, since the immediate neighbour has waived the benefit of the easement, the construction is lawful in their private relations.

The Court of Appeal rules in favour of Mr Z and orders demolition. Mr X appeals to the Supreme Court. He argues that the specifications create reciprocal easements, but that each owner can waive his right, especially if the dominant tenement (the one benefiting from the easement) accepts the infringement. In this case, Mr Y, the owner of the neighbouring land, had accepted. Why should a third party be able to oppose it?

The Supreme Court dismisses the appeal. It holds that the plots in an estate development are reciprocally, with respect to each other, both dominant and servient tenements in relation to all the rules governing the development, particularly the easements in the specifications. It is not open to plot owners whose plots are adjacent to waive, in their private relations, compliance with such easements. Demolition is confirmed.

The court’s reasoning — analysed

To understand this decision, one must grasp the particular nature of estate development easements. Unlike a classic right of way (e.g., the right to pass over a neighbour’s land to access one’s own plot), the easements set out in an estate development’s specifications have a collective character. They benefit not just one neighbouring plot, but all the plots in the development.

In law, it is said that each plot is both a “dominant tenement” (it benefits from the easements) and a “servient tenement” (it bears the easements for the benefit of others). This dual status prevents a plot owner from unilaterally waiving an easement, even with the agreement of his immediate neighbour. Why? Because that would amount to amending the specifications, which requires the consent of all plot owners (or a decision by the competent authority).

What few people know: the basis for this rule is Article 1134 of the (former) Civil Code on the binding force of contracts. The specifications are a collective contract. The judges considered that an individual waiver would undermine the overall structure of the development. In its decision, the Supreme Court uses strong language: “it is not open to plot owners […] to waive, in their private relations, compliance with such easements.”

The Court thus confirms that estate development easements are of a conventional public order. Even if the immediate neighbour agrees, the construction remains unlawful under the regulations. The ruling is clear: the rights and obligations arising from the specifications are attached to the plots, not to the persons. An owner cannot freely dispose of them.

What this means for you — practically

Are you an owner in an estate development? This decision directly concerns you. If you are planning to build an extension, a swimming pool or a garden shed, do not rely solely on the oral or written agreement of your neighbour. Check the specifications and the estate development regulations. A private agreement does not protect you against action by another plot owner, nor against the authorities in the event of non-compliance with the building permit.

Let’s take a concrete example: in Nice, in an estate development on the heights of Cimiez, the specifications require a 3-metre setback from the property boundary. An owner builds a covered terrace 1.50 metres from the boundary, with the agreement of his immediate neighbour. Another owner, two plots away, sues him. The court orders demolition of the terrace, costing an estimated €15,000, plus legal costs (often several thousand euros). The immediate neighbour’s agreement was useless.

For a buyer, the lesson is simple: before purchasing a property in an estate development, read the specifications carefully. If you see existing constructions that appear to be in breach (e.g., a fence that is too high, a building too close to the boundary), be aware that there is a risk of litigation, even if the seller assures you that “everyone is agreed”.

For a tenant, the situation is different: you are not directly bound by the specifications, but the landlord must comply with the rules. If works are done in violation, you may suffer nuisance (demolition works, proceedings). It is better to enquire before signing the lease.

Four tips to avoid this type of dispute

• Consult the specifications before any project: Before buying a property or starting works, request a copy of the specifications and the estate development regulations. These documents are normally annexed to the sale deed. Check the easements, non-building zones, maximum heights, etc.
• Obtain the agreement of all plot owners if you want to modify an easement: A modification of the specifications requires the unanimous consent of the owners (or a decision of the general meeting if the development is managed as a condominium). A simple agreement with the immediate neighbour is not enough. In practice, you will need to gather all the plot owners and have them sign a deed of amendment.
• Consult a lawyer solicitor before starting works: For a few hundred euros, a solicitor can analyse the feasibility of your project with regard to the specifications and the Local Plan (PLU). This will save you from costly demolition. undefined, I have come across cases where an owner spent €50,000 on an extension that had to be demolished for failure to check the easements.
• In the event of a dispute, do not rely on a verbal agreement: The courts require written evidence. Even if you have a written agreement from your neighbour, it will not protect you against other plot owners. The only secure solution is to regularise the situation by amending the specifications or obtaining a compliant planning permission.

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Further reading: related case law and developments

The 1983 decision is part of a consistent line of Supreme Court rulings. Already, in a judgment of 24 March 1975 (no. 73-13.498), the Court had held that estate development easements are of public order and cannot be modified by private agreements between plot owners. More recently, a judgment of 16 February 2022 (no. 20-18.523) reiterated that non-compliance with the specifications by a plot owner may justify demolition of the construction, even if the authorities have granted planning permission. Indeed, the specifications are a private contract that applies independently of administrative authorisations.

The trend is therefore clear: the judges protect the integrity of the estate development and do not tolerate infringements, even if consented to. However, beware: if the development is very old (sometimes over 30 years), certain easements may be considered obsolete if they are no longer respected by all. But this is not automatic. It requires a court decision or a collective amendment. In the absence of this, the 1983 rule remains applicable.

What you absolutely need to remember

FAQ:

1. Can I build if my immediate neighbour gives me written consent? No, if the construction violates the specifications, another plot owner can sue you. Your neighbour’s agreement does not protect you.
2. What should I do if I discover a non-compliant construction on my neighbour’s land? You can sue him to enforce the specifications. Case law favours respect for collective rules.
3. Can I modify the specifications? Yes, but you need the unanimous consent of all plot owners in the development. The deed must then be registered with the land registry.
4. What is the time limit for taking action? For estate development easements, action can be brought as long as the construction has not been completed for 30 years (acquisitive prescription). But it is better to act quickly, as soon as you become aware of the breach.
5. Does this rule apply to all estate developments? Yes, provided the specifications are still in force. Some very old developments (pre-1950) may have lost their enforceability, but this is rare. Check with a solicitor.

Are you in a similar situation? A 30-minute initial consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →