Non aedificandi Servitude: No Prohibition Without Title, Even if the Leasehold Regulations Impose It

Imagine: you have just bought a house in Mimizan, with a large plot. You plan to build a garage, but your neighbour stops you short: “It's forbidden, the leasehold regulations prevent it!” Except these regulations date from 1960, and since then, planning rules have changed. Who is right? This seemingly mundane question gave rise to a landmark ruling of the Court of Cassation in 1973. In this case, a property company claimed a non aedificandi servitude (prohibition on building) over the neighbouring plot, relying on the leasehold regulations in force at the time of division of the property. But the Court ruled: without a title, no servitude. Explanations.

The Facts: A Story That Happens Every Day

In this case, a property company (SCI) owned several units in a block of flats in Paris. It considered that the neighbouring unit, belonging to another co-owner, was burdened with a non aedificandi servitude (prohibition on building) over a strip of land several metres wide on either side of the boundary line. This servitude allegedly resulted from the leasehold regulations in force at the time of division of the property (i.e. when the original owner divided his land into several units). In addition, it claimed a right of way through a carriage gate, a servitude of common courtyard, and a drainage servitude. The neighbour, for his part, had built on his plot a building that complied with the regulations in force at the time of construction. The SCI then sued the neighbour to have these servitudes recognised and to obtain demolition of the building. The Court of Appeal dismissed its claims, holding that the non aedificandi servitude was not established. The SCI appealed to the Court of Cassation.

The Reasoning of the Court — Analysed

The central legal question is this: can a non-apparent servitude (such as non aedificandi) arise from the leasehold regulations alone in force at the time of division of the property? The Court of Cassation answers no. For a servitude to exist, it must be established by a title (notarial deed, contract), by adverse possession (30-year possession), or by the intention of the common owner (the common owner arranged the premises as if there were a servitude before division). In this case, the SCI produced no title, and adverse possession was impossible for a non-apparent servitude (since it is not manifested by external signs). As for the intention of the common owner, it would require that the original owner established a permanent situation of servitude before division, which was not proven. The Court notes that the building erected on the plot complied with the regulations in force at the time of its construction. That ground alone suffices to justify the refusal to recognise the non aedificandi servitude. In other words, the mere fact that the original leasehold regulations provided for a prohibition on building does not create a servitude enforceable against successive owners. This decision is a strict application of the principle that servitudes are of strict right (Article 686 of the Civil Code).

What This Means for You — Practically

Whether you are an owner, purchaser, or co-owner, this decision concerns you directly. For landlord owners: if you plan to build an extension or a garage on your unit, check the title deeds. Do not rely solely on the leasehold regulations. Without a written title, you can challenge a prohibition on building. Example in Mont-de-Marsan: an owner of a unit in a 1970s residence wants to add a conservatory. The regulations prohibit new buildings, but the Court of Cassation says this prohibition is not an enforceable servitude. He can build, subject to planning rules. For purchasers: before buying, demand a list of servitudes in the sale deed. If the seller tells you “it is forbidden by the regulations”, ask him to show you the title. For co-owners: if you want to protect your view or sunlight, do not rely on the regulations: have a servitude recorded in the leasehold title. undefined that a prohibition on building in leasehold regulations can be circumvented if it is not reproduced in individual titles. But beware: the leasehold regulations may impose contractual restrictions (clauses) that are valid between co-owners, even without being real servitudes. This is an important nuance that few people know.

Four Tips to Avoid This Type of Dispute

• Check your title deeds: before undertaking works, carefully read the sale deed and the leasehold regulations. A non aedificandi servitude must be expressly stated there.
• Consult a notary or lawyer lawyer: to interpret the clauses of the regulations and determine whether they create servitudes or merely contractual obligations.
• Check the Local Plan (PLU): even if the leasehold regulations prohibit building, planning rules may allow exemptions. Conversely, the PLU may prohibit what the regulations allow.
• If in doubt, seek an interim injunction: if your neighbour starts works that you consider contrary to a servitude, apply to the interim judge to stop the disturbance. But prepare your evidence (title, deeds, bailiff's reports).

Further Reading: Related Case Law and Developments

This 1973 decision is part of consistent case law: non-apparent servitudes can only be established by title (Cass. civ. 3e, 18 December 2002, No. 01-03.287). Another more recent decision specifies that the leasehold regulations can only create a servitude if they are annexed to the title deed of each unit (Cass. civ. 3e, 12 May 2010, No. 09-13.280). The trend of the courts is thus protective of the building owner: as long as no title prohibits it, he is free. But note: since 1973, case law has evolved on the notion of intention of the common owner. Today, it can be applied even to non-apparent servitudes if the original owner established a permanent situation before division (for example, by building a retaining wall that prevents building). What this means for the future: disputes of this type will multiply with urban densification. In Mimizan as elsewhere, it is crucial to formalise in writing any restriction on building.

Summary and Next Steps

FAQ:

• Can I build if the leasehold regulations prohibit it? Yes, if that prohibition is not repeated in your title deed. The leasehold regulations have only contractual value between co-owners, but do not create a real servitude.
• What if my neighbour builds in violation of a non aedificandi servitude? First check whether that servitude is mentioned in his title deed or yours. If so, take legal action. Otherwise, you cannot prevent it.
• What are the time limits for action? An action to recognise a servitude is imprescriptible (no time limit), but an action for demolition of an unlawful building is barred after 30 years from completion of the works.
• How much does a procedure cost? An interim injunction costs between €1,500 and €3,000 in lawyer's fees, plus any expert fees. A full trial can range from €5,000 to €15,000 depending on complexity.
• Can I acquire a servitude by prescription (adverse possession)? For a non-apparent servitude, no, because it is not manifested by external signs. Only an apparent servitude (e.g., right of way, view) can be acquired by 30-year possession.

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