Non aedificandi Servitude: When the Prefect Imposes Rules in a Housing Estate (Cass. civ., 16 June 1987)

Imagine: you buy a plot of land in Saint-Florent, Haute-Corse, with a breathtaking view of the gulf. The housing estate is authorised by prefectural order, and the regulations mention a non aedificandi servitude (prohibition on building) on part of the plot. You tell yourself it's temporary, that the prefect will lift it one day. But then: your neighbour builds a low wall, and you want to know if this servitude is truly enforceable. Who can interpret this clause? The administrative court or the judicial court? This question, which seems technical, directly affects the legal security of your property. The Court of Cassation, in a judgment of 16 June 1987, ruled: the rules laid down by the prefect in the housing estate authorisation order are regulatory in nature, and it is the judicial court that has jurisdiction to interpret them. A decision that sheds light on many disputes, particularly in Corsica, where old housing estates abound with ambiguous servitudes.

The Facts: A Story Like Many Others

Mr X is the owner of a plot in Saint-Florent, in a housing estate approved by prefectural order in 1970. The housing estate regulations provide for a non aedificandi servitude on part of plot no. 9, intended for market gardening. The clause states that this servitude may be lifted when the development and sanitation projects encompassing the area are completed. But years pass, and nothing happens. Mr X wants to build a small house on this part, but his neighbour, Mr Y, opposes it, arguing that the servitude is still in force. Mr X brings the matter before the tribunal de grande instance (TGI) to have the clause interpreted. But the TGI declares itself incompetent: in its view, the interpretation of a prefectural order falls within the jurisdiction of the administrative court. Mr X appeals, then lodges an appeal in cassation. The Court of Cassation, in its judgment of 16 June 1987 (no. 86-10.101), quashes the appeal judgment: it affirms that the rules imposed by the prefect in the order are regulatory in nature, and that the judicial court has jurisdiction to interpret them, because they are not individual but apply to all plots concerned. In other words, the servitude is not simply a contractual clause between the developer and the purchasers: it is a rule of objective law, and it is for the judicial court to say what it means.

The Reasoning of the Court — Analysed

The Court of Cassation relies on a fundamental principle of law: the distinction between individual acts and regulatory acts. An individual act (such as a housing estate authorisation granted to a person) creates rights only for the person to whom it is addressed. By contrast, a regulatory act lays down general and impersonal rules applicable to all. Here, the prefect, in authorising the housing estate, laid down in his order planning rules (servitudes, alignments, etc.) that are binding on all purchasers of plots. These rules therefore have a general scope, even if they are included in an individual act. The Court cites Article 7 of the Law of 19 July 1976 (now codified in Article L. 442-1 of the Planning Code) which provides that the judicial court has jurisdiction to interpret the clauses of housing estate regulations. But above all, it affirms that the regulatory nature of these rules justifies judicial jurisdiction, because the administrative court does not have to interpret rules that are not individual decisions. In doing so, the Court of Cassation confirms previous case law (notably a judgment of 19 March 1985) and avoids a conflict of jurisdiction that would have left owners without a remedy. In short, if you have a doubt about a servitude imposed by the prefect in a housing estate, it is not to the administrative court that you should go, but to the judicial court (formerly TGI).

What This Changes for You — Practically

This decision has major practical implications for owners of plots in old housing estates, particularly in Corsica where many housing estates were authorised in the 1960s-1970s with complex servitudes. For the owner of a plot in Bastia: if your housing estate regulations prohibit building above a certain height, and you want to challenge this rule, you must bring the matter before the judicial court of Bastia, not the administrative court. For the purchaser: before buying a plot in a housing estate, check whether administrative servitudes are mentioned in the prefectural order. They cannot be modified by a simple sale, and their interpretation may require a lawyer. For the neighbour: if you believe that your neighbour's construction violates a regulatory servitude, you can take civil action to enforce the rule. Beware, however: the limitation periods are 5 years for personal actions (Article 2224 of the Civil Code) and 30 years for real property actions (Article 2227). undefined, I have come across cases where owners in Saint-Florent thought the servitude was obsolete because the housing estate was 40 years old. That is not the case: as long as the regulations have not been modified by a prefectural decision, the servitude remains in force.

Four Tips to Avoid This Type of Dispute

• Keep all housing estate documents: prefectural order, regulations, housing estate plan. These documents are essential to determine the nature and scope of servitudes. Without them, you will not be able to prove the existence of the rule.
• Before buying, have the regulations analysed by a specialist lawyer: A notary can inform you, but only a property lawyer can detect ambiguous clauses or potentially contestable servitudes. Expect to pay around €300 to €500 for a full analysis.
• If in doubt, seek an interpretation from the judicial court: Do not wait for a conflict to arise. An action for interpretation (Article 1379 of the Code of Civil Procedure) allows a clause to be clarified without waiting for a trial. The cost is moderate (a few hundred euros in lawyer's fees and court costs).
• If you are the owner of a plot subject to a servitude, do not build without authorisation: Building in violation of a regulatory servitude exposes you to demolition ordered by the court, with damages. It is better to obtain a modification of the prefectural order (if possible) or a prior court decision.

Further Reading: Related Case Law and Developments

This 1987 judgment is part of a consistent line of case law. Already, in a judgment of 19 March 1985 (no. 83-16.123), the Court of Cassation had ruled that the rules of a housing estate approved by prefectural order were regulatory in nature. More recently, the Court clarified (Cass. 3e civ., 10 September 2015, no. 14-18.697) that the judicial court has jurisdiction to interpret the rules of a housing estate even after the expiry of the ten-year period provided for by Article L. 442-9 of the Planning Code. In other words, judicial jurisdiction does not disappear over time. This case law was reinforced by the ALUR Law of 24 March 2014, which strengthened the role of the judicial court in housing estate matters. What few people know is that this jurisdiction also extends to contractual servitudes (those included in the sale deed): the judicial court is the natural judge of contract interpretation.

In Practice: What to Do

FAQ:

• Question: How do I know if a servitude in my housing estate is regulatory or contractual?
  Answer: Check the prefectural authorisation order. If the servitude is laid down by the prefect in the order, it is regulatory. If it is only in the sale deed, it is contractual. If in doubt, consult a lawyer.
• Question: Can I request the lifting of a non aedificandi servitude imposed by the prefect?
  Answer: Yes, if the regulations provide for it (often subject to the completion of facilities). You must apply to the prefect to modify the order, or to the judicial court to interpret the clause if the prefect refuses.
• Question: What is the time limit for taking legal action?
  Answer: For an action for interpretation, there is no limitation period (it is a declaratory action). For an action for violation of a servitude, you have 5 years from the disputed construction (personal action) or 30 years (real action).
• Question: How much does an interpretation procedure cost?
  Answer: Expect between €1,500 and €3,000 in lawyer's fees, plus court costs (about €200). If you win, costs may be awarded against the other party.
• Question: What if the judicial court declares itself incompetent?
  Answer: This rarely happens since 1987. If it does, you can file a contredit (Article 78 of the Code of Civil Procedure) or apply to the Tribunal des Conflits. But in practice, judicial courts accept their jurisdiction.

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