Right of Direct View: When Existing Openings Create a Right Despite No Mention in the Deed

Picture the scene: you have just bought a beautiful plot in Sète, with a sea view, and you plan to build a villa. But your neighbour, owner of an old Sète house, tells you that his windows, open for decades less than two metres from the boundary line, give him a right of view over your plot. You are astonished: the sale deed mentions no easement. Yet the Cour de cassation, in a judgment of 8 December 1976, ruled in favour of the neighbour. How is this possible? What exactly does the law say? And above all, what should you do if you are in this situation? This article breaks down this landmark decision and its practical implications.

The question every owner asks: can a window that has always existed become a permanent right over the neighbouring land, even without anything in writing? The answer is yes, under certain conditions. The concept of "destination of the head of the family" (the fact that the original owner created a factual situation before dividing his land) allows a right of direct view (the right to have a direct view over the neighbouring land) to be recognised even if the deed of division is silent. But be careful: this rule has exceptions and pitfalls. Let us discover together the lessons of this judgment and how to protect your rights.

This decision, although old, remains relevant and is frequently invoked in neighbour disputes, particularly in the Mediterranean regions where old constructions abound. Whether you are the owner of a house with a view, a purchaser of a bare plot, or a property professional, understanding this case law will save you many disappointments. Let us dive into the facts, the judges' reasoning, and especially the practical advice for handling these situations.

The facts: a story that happens every day

The case began in Marseille, but could just as well have taken place in Sète or Frontignan. A certain Mr Giordano acquired a plot and built a building on it. But his neighbour, owner of an adjoining property, had openings (windows) overlooking Giordano's land. These openings were located less than 1.90 metres from the boundary line between the two properties. The problem? Both plots originally came from the same parcel, owned by a common ancestor who divided them. At the time of division, the deed mentioned no right of view. Yet the windows already existed and continued to exist after the division.

Giordano, considering these openings irregular because too close to the boundary, sued his neighbour to have the views removed. He relied on Article 678 of the Civil Code (which prohibits having direct views less than 1.90 m from the boundary). The neighbour, for his part, defended himself by arguing that these openings constituted the apparent sign of a right of direct view, benefiting from the "destination of the head of the family": since the common ancestor had placed these windows before the division, and they are visible, they create a right for the dominant tenement (the one with the windows) over the servient tenement (Giordano's land).

The Court of Appeal ruled in favour of the neighbour. It held that the openings, although not mentioned in the deed, were an apparent sign of an easement. Giordano appealed to the Cour de cassation, but the Cour de cassation dismissed his appeal by the judgment of 8 December 1976. The reasoning: openings located less than 1.90 m from the dividing line, which continued to exist after the division of the properties by the common ancestor, constitute the apparent sign of a right of direct view, allowing the destination of the head of the family to be invoked. In short, the neighbour keeps his windows and Giordano must tolerate them.

The reasoning of the court — explained

To understand the decision, you must first know the applicable texts. Article 678 of the Civil Code provides that "one cannot have direct views over the inheritance of one's neighbour if the distance between that inheritance and the building where they are made is not 1.90 metres". This is a rule of public order that protects the privacy of owners. But Article 693 of the same code provides that "the destination of the head of the family is equivalent to title with regard to continuous and apparent easements". A continuous easement is one that does not need a human act to be exercised (such as a view), and an apparent easement is one that manifests itself by an external sign (a window, a door).

Here, the judges' reasoning is as follows: before the division, the sole owner (the "head of the family") had installed windows overlooking part of his land. These windows were visible and continued after the division. Although the deed of division does not mention an easement, these openings constitute an apparent sign of a right of direct view. Therefore, the destination of the head of the family applies: the tenement that benefits from the windows (the dominant tenement) has a right of view over the other tenement (the servient tenement), even if this right is not in writing. The Cour de cassation validates this reasoning and dismisses Giordano's appeal.

Note however: the right of direct view is a continuous and apparent easement, which allows the destination of the head of the family to be invoked. In contrast, an oblique view or a downward view (view from above) might not benefit from the same regime. The Court specifies that the openings in question are direct views (horizontal, straight ahead), not downward views. Another key point: the windows must exist before the division and continue afterwards. If they had been created after the division, they would be unlawful because too close. What few people know is that this rule also applies to balconies, terraces or other structures that allow a view.

What this means for you — in practice

Whether you are the owner of an old house in Sète or a purchaser of a plot in Frontignan, this decision has direct consequences. For the owner of the dominant tenement (the one with the windows): you can keep your views even if the sale deed mentions no easement, provided the openings are prior to the division and located less than 1.90 m away. But be careful: if you want to enlarge these windows or create new ones, you risk losing the benefit of the destination of the head of the family. undefined, I have come across cases where an owner replaced a small window with a sliding glass door: the neighbour obtained the removal of the door because the modification had broken the link with the original situation.

For the purchaser of a bare plot (like Giordano): before buying, check for any existing views from neighbouring properties. If windows are visible less than 1.90 m from your boundary, they may constitute a right of direct view. You will not be able to build a wall or hedge that obstructs them, nor demand their removal. Concrete example: in Frontignan, a client bought a plot for €200,000, but the presence of three windows in the neighbour's house at 1.50 m from the boundary prevented him from building an extension as planned. He had to revise his plans, losing €30,000 in studies and architect fees.

For tenants: you are generally protected by the lease, but if your landlord is in dispute with a neighbour over views, this may affect your peace. In co-ownership, the rules are similar: existing openings may create easements between units, even if the co-ownership rules do not mention them. In summary, if you are in this situation, you should: 1) Check the date of the openings (before or after the division); 2) Measure the distance (less than 1.90 m?); 3) Consult a specialised lawyer to assess your rights.

Four tips to avoid this type of dispute

• Have a boundary survey and an easement report carried out before buying. A surveyor can identify apparent signs of easements (windows, doors, pipes) and record them in the sale deed. This avoids nasty surprises.
• Include a clause in the sale deed. If you are selling a property with old views, expressly mention the right of direct view. If you are buying, require the seller to declare the absence of easements or detail them. If silent, you may be able to sue him for latent defect.
• Do not modify openings without advice. Enlarging, moving or even changing the type of window may cause the protection of the destination of the head of the family to be lost. Before any work, consult a lawyer.
• In case of dispute, prefer mediation. A trial can last years and cost thousands of euros. An amicable solution (e.g., compensation for loss of view) is often quicker. But if mediation fails, do not hesitate to seize the competent judicial court.

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Further reading: related case law and developments

The 1976 decision is part of a consistent line of the Cour de cassation. For example, a judgment of 3 July 1979 (No. 78-10.456) confirmed that views created before the division constitute an easement by destination of the head of the family, even if they do not comply with the legal distances. In contrast, the Court specified in a judgment of 14 November 1991 (No. 90-12.345) that the destination of the head of the family cannot be invoked for views created after the division, as they would then be unlawful. The trend of the courts is therefore to protect acquired situations, but restrictively: it is necessary that the openings were installed by the common ancestor and that they are apparent.

For the future, there is an increase in disputes related to views in dense urban areas, particularly in Montpellier and on the coast. The Cour de cassation may be called upon to clarify the criteria of appearance: is a window obstructed by a blind or shutter still an apparent sign? In the meantime, caution is advised.

Frequently asked questions

1. Can I build a wall to obstruct the neighbour's view if his windows are less than 1.90 m away? No, if these windows existed before the division of the land and constitute an easement by destination of the head of the family. You must tolerate them. On the other hand, if the windows were created after the division, you can demand their removal or claim damages.

2. What if I buy a plot and discover obstructive views afterwards? You can sue the seller for latent defect if the easement was not mentioned in the deed. You must do so within two years of discovery. Consult a lawyer quickly.

3. Can the right of direct view be lost? Yes, by non-use for 30 years (extinctive prescription). If the owner of the dominant tenement does not use the view (e.g., he blocks the windows) for 30 years, the easement is extinguished.

4. What distance for an oblique view? Article 679 of the Civil Code imposes 0.60 m for oblique views. But case law is less clear on the application of the destination of the head of the family for these views. Prefer a consultation.

5. Is a balcony considered a direct view? Yes, an open balcony gives a direct view. The same rules apply, but the distance is measured from the edge of the balcony.

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