Non aedificandi servitude: is an underground garage prohibited?

You own a house in Rennes, with a shared courtyard that serves to air and light your home. One day, your neighbour, owner of the adjacent lot, decides to dig a garage under this courtyard. You wonder: can he do it? Does the "non aedificandi" servitude, which prohibits building above ground, also apply underground? This is precisely the question decided by the Court of Cassation in a judgment of 5 May 1975. And the answer is surprising: yes, it is possible, unless the deed creating the servitude expressly prohibits it. Let's break it down.

The facts: a story like many others

Imagine a property in Rennes, consisting of two lots. A shared courtyard separates them, subject to a "non aedificandi" servitude (literally "not to build") to ensure sufficient ventilation, sunlight and outlook for the existing buildings on the first lot. The owner of the second lot, a company, decides to dig an underground garage under this courtyard, with an access ramp and a protective wall. The owner of the first lot opposes this: in his view, the garage violates the servitude and the purpose of the shared courtyard. The dispute goes up to the Court of Appeal, which rules in favour of the builder. The aggrieved owner appeals to the Court of Cassation, arguing that the Court of Appeal distorted the shared courtyard agreement and the servitude. The Court of Cassation dismisses his appeal, upholding the decision of the lower courts.

The reasoning of the court — broken down

In its judgment, the Court of Cassation recalls a fundamental principle: a servitude is a charge imposed on one property for the use and benefit of another property (Article 637 of the Civil Code). It must be interpreted strictly. In this case, the deed creating the "non aedificandi" servitude provided that it aimed to ensure sufficient ventilation, sunlight and outlook. But it did not prohibit any particular use of the courtyard, nor any open or closed construction below ground level. The terms of the deed were ambiguous: what exactly did "build" mean? Was it to be understood as any construction, including underground? The Court of Appeal, to resolve this ambiguity, interpreted the intention of the parties with full discretion. It considered that the underground garage did not affect the servitude, as it did not impede ventilation, sunlight or outlook. By digging under the courtyard, the owner of the second lot had merely exercised his right of ownership (Article 552 of the Civil Code: the owner of the land owns the subsoil). The Court of Cassation validates this reasoning: the Court of Appeal did not distort the contract; it merely gave it a necessary interpretation.

What this means for you — practically

If you are the owner of a lot subject to a "non aedificandi" servitude, this decision teaches you that the prohibition on building only concerns constructions above ground, unless there is an express clause to the contrary. Therefore, you can, in principle, dig a cellar, a garage or an underground pool, even if your land is subject to such a servitude. However, be careful: if the deed specifies that the servitude extends to the subsoil, or if the works compromise the utility of the servitude (e.g., they reduce ventilation), you risk litigation. For owners benefiting from the servitude (those who benefit from the view, the light), this decision may be disappointing. But it reminds you of the importance of drafting clear and precise deeds. In Saint-Malo, for example, an owner of a house with a sea view could see his neighbour dig a garage under the shared courtyard without the view servitude preventing it, if that servitude is drafted too vaguely.

Four tips to avoid this type of dispute

• Draft your servitudes precisely: do not hesitate to explicitly mention whether the prohibition on building extends to the subsoil, and describe the works permitted or prohibited.
• Consult a lawyer lawyer before signing a sale deed or servitude: a professional can anticipate ambiguities and secure your right.
• Before digging, check the deed creating the servitude: verify if it mentions the subsoil. In case of doubt, seek a judicial interpretation or an amicable agreement.
• In case of dispute, favour mediation: a lawsuit is expensive and lengthy. A discussion with your neighbour, guided by a lawyer, can often resolve the conflict.

Further reading: related case law and developments

Case law has been consistent since this judgment: the "non aedificandi" servitude does not extend to the subsoil, unless there is a clause to the contrary. One can cite a Court of Cassation judgment of 3 July 1996 (No. 94-15.472) which held that the prohibition on building only concerns visible constructions. The trend is therefore favourable to the freedom of the landowner. But beware: this freedom is not absolute. If the underground garage affects the stability of the neighbouring building or violates planning regulations, it may be prohibited. Moreover, judges always interpret the intention of the parties. If the deed mentions a "prospect" (distance between buildings) or "sunlight", and the garage harms these elements, the servitude could be considered violated.

Summary and next steps

What to remember:

• The "non aedificandi" servitude does not prohibit underground constructions, unless the deed specifies otherwise.
• The owner of the land can dig a garage under a shared courtyard, even if it is subject to this servitude.
• To avoid disputes, draft clear deeds and consult a lawyer before any project.

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FAQ:

1. Can I dig a cellar if my land is subject to a non aedificandi servitude? Yes, in principle, unless the deed expressly prohibits it.
2. What if my neighbour builds an underground garage that obstructs my view? Check the servitude deed: if the servitude only mentions sunlight or ventilation, the garage is probably allowed. Consult a lawyer.
3. What is the cost of a dispute over a servitude? Expect between €2,000 and €10,000 in legal fees, not including expert costs and years of proceedings.
4. Can I claim compensation if my neighbour builds in violation of the servitude? Yes, you can demand demolition and damages.
5. How do I know if my servitude extends to the subsoil? Check your title deed or the servitude deed. In case of ambiguity, a lawyer can help you interpret it.

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