Right of View by Destination of the Head of the Family: When the Judge Interprets the Seller's Intention

Picture this: you have just bought a beautiful villa in Mandelieu-La Napoule, with a stunning sea view. But your neighbour, owner of the adjoining land, decides to build a wall that blocks your windows. You then discover that these windows, though existing for decades, do not benefit from any right of view (right to see onto the neighbour's property) recorded in your deed of sale. What can you do? This question is asked by hundreds of owners every year on the Côte d'Azur.

The decision of the French Supreme Court of 15 May 1991 (No. 89-21.384) provides a nuanced answer: the lower courts have full discretion to assess the intention of the common author (the person who divided the land) to subject one piece of land for the benefit of the other by creating openings. In short, if the original seller divided his property leaving visible windows, without opposing them in the deed, these windows may constitute an easement by destination of the head of the family (an easement created automatically upon a division, without written deed). But caution: this assessment is left to the judges, making each dispute unique.

This judgment is a reference for all owners, buyers and real estate professionals. It reminds us that the title deed is not always sufficient: visible signs at the time of division may create real rights (rights attached to the property, enforceable against everyone). But how do you prove the intention of the common author? And what can you do if your neighbour challenges your windows? Let's delve into the case.

The facts: a story that happens every day

Mr X owned a plot in Cannes, resulting from the division of a larger piece of land formerly owned by a certain Mr Y. Upon division, Mr Y retained part of the land and sold the other part to Mr X. On the sold part, windows overlooked the retained plot. These windows already existed at the time of division: they were visible, with shutters, and nothing in the deed of sale mentioned their removal or opposed their presence.

Years later, Mr X decided to renovate his villa and enlarge these windows. His neighbour, owner of the retained plot (now a building plot), objected: according to him, these windows did not benefit from any right of view, because the deed of sale made no mention of it. He sued Mr X to obtain the removal of the windows and damages (compensation for neighbourhood disturbance).

The court of first instance ruled in favour of the neighbour: without a written title, no easement. Mr X appealed. The Aix-en-Provence Court of Appeal examined the facts: it noted that the windows existed before the division, were visible, and the deed of sale contained no clause prohibiting their maintenance. It inferred that the common author, Mr Y, indeed intended to create a right of view by destination of the head of the family. The neighbour appealed to the Supreme Court.

The reasoning of the court — dissected

In its judgment of 15 May 1991, the French Supreme Court dismissed the appeal and upheld the decision of the Court of Appeal. Its reasoning hinges on two essential points.

First, it recalls the principle of Article 694 of the French Civil Code (now codified in Articles 686 et seq.): the destination of the head of the family is a method of establishing easements. This means that when the owner of a piece of land divides it and, on one of the plots, there are visible signs of an easement (windows, a door, a passage) for the benefit of the other plot, the easement is automatically created, unless the deed of division contains a contrary clause. In other words, windows that overlook the neighbouring property before the division become a legal easement after the sale, even without a written deed.

Second, the Court emphasises that the lower courts (here, the Aix-en-Provence Court of Appeal) have full discretion to assess the intention of the common author. This full discretion means that the Supreme Court does not review their interpretation of the facts, except in cases of distortion (obvious misrepresentation). The Court of Appeal had found that the windows were visible, that they imposed a view over the neighbouring property, and that the deed of sale did not oppose them. It therefore inferred that the common author intended to create an easement. The Supreme Court validates this reasoning.

What few people know is that this solution is not new: it confirms settled case law. But it reminds us that a written title is not always necessary: material signs may suffice. In practice, this obliges sellers to be extremely precise in their deeds of division: if they want to avoid an easement, they must say so clearly.

What this means for you — concretely

For owners: if you buy a house with windows overlooking the neighbouring land, and these windows existed before the division of the land, you probably benefit from a right of view, even if the deed of sale does not mention it. But caution: this easement is not absolute. It does not allow you to modify the openings (enlarge them, turn them into French windows) without the neighbour's consent. undefined, I have seen cases where an owner in Cannes wanted to replace a simple window with a sliding glass door: the neighbour obtained restoration of the original state, because the initial easement only covered an opening of limited dimensions.

For sellers: if you divide your land, check the existing openings and their orientations. If you do not want to create an easement, put it in writing in the deed of division. Concrete example: in Mandelieu, a developer divided a villa into two lots. The windows of lot A overlooked the garden of lot B. The deed of sale stated that these windows could be removed at the request of lot B. This clause avoided a costly dispute.

For buyers: before buying, ask your notary to check the previous deeds of division. Have the openings inspected by an expert. If you discover after the sale that your windows are challenged, you can invoke the destination of the head of the family if the conditions are met. But the time limit to act is 5 years from the knowledge of the disturbance (Article 2224 of the French Civil Code).

For co-owners: the same rules apply between co-ownership lots. The windows of a flat overlooking common parts or another lot may create easements. A consultation with a specialised lawyer may shed light.

Four tips to avoid this type of dispute

• 1. Have a statement of openings drafted in the deed of division. Whether you are a seller or a buyer, mention precisely each window, door, balcony, and their orientation. If an easement is desired or excluded, say so.
• 2. Consult a surveyor before any division. He will be able to identify visible signs of easements and advise you on the mentions to include in the deed.
• 3. Photograph the premises before the sale. In case of a dispute, dated photos will prove the existence of the openings at the time of division. This is a simple and effective piece of evidence.
• 4. In case of doubt, obtain a notarial certificate. The notary can certify that the common author did not intend to create an easement, by inserting a clause in the deed. This avoids any subsequent challenge.

Further reading: related case law and developments

The 1991 decision is part of a consistent line: the French Supreme Court has always recognised the full discretion of the lower courts to assess the intention of the common author (Civ. 3e, 10 March 1981, No. 79-16.246). More recently, a judgment of 20 January 2016 (No. 14-29.155) specified that the destination of the head of the family may result from mere tolerance: if the common author left openings without objecting, his intention is presumed. This case law is stable.

However, a recent trend is towards caution: courts require "manifest" and "unequivocal" signs. Thus, a simple skylight or a small roof window may not always suffice. Conversely, a French window opening onto a common terrace is generally considered a clear sign.

For the future, the digitalisation of notarial deeds could facilitate proof: digital photos and plans will be integrated into deeds. But in the meantime, the judge's word remains sovereign.

Checklist before taking action

FAQ:

• Question: Can I enlarge a window that benefits from an easement by destination of the head of the family?
  Answer: No, unless the deed of division authorises it. Any substantial modification (enlargement, change of nature) may be challenged by the neighbour, as it worsens the easement.
• Question: What can I do if my neighbour builds a wall that blocks my windows?
  Answer: You can sue them to restore the easement. But caution: you must prove that the windows existed before the division. Photos, cadastral plans (official property records) and witness statements are useful.
• Question: What is the time limit to act?
  Answer: 5 years from the day you become aware of the disturbance (for example, the start of the neighbour's works). Beyond that, the action is time-barred.
• Question: Do I have to go through a lawyer?
  Answer: Yes, because the procedure is technical. A lawyer specialising in property law can gather evidence and argue the intention of the common author.
• Question: Can I sell my property with an unwritten easement?
  Answer: Yes, but you must inform the buyer. Otherwise, they could claim the sale is void for lack of information (latent defect).

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