Right of Oblique View: How to Prove Acquisition by Prescription?

You have just bought a house in Canet-en-Roussillon, with a beautiful view of the Albères from your roof window. Suddenly, your neighbour undertakes construction that blocks this view. You think: 'But I have always had this view, it is acquired!' Not so fast. In law, a view over the neighbouring land can be an easement, but it must be proved that it has existed for more than thirty years. This is exactly what the Court of Cassation reminds us in a judgment of 14 March 1972 (No. 70-13.340).

What does this decision say? That it is not enough to assert that your window has overlooked the neighbour's property for a long time; you must provide certain proof, without any doubt as to the initial form of the opening and the absence of enlargement. In short, if you enlarged your window twenty years ago, you cannot invoke an easement by prescription (acquisition by the passage of time) for the prior period.

This decision, although dating from 1972, remains an essential reference for all owners, tenants and property professionals. It illustrates the rigour with which judges examine rights of view, whether direct or oblique. So, how do you prove that your view is lawful? And how do you avoid a dispute? Follow the guide.

The Facts: A Story Like Many Others

Imagine a small street in Saint-Cyprien, lined with semi-detached houses. Mr and Mrs Y have owned a house since 1940. Their gable wall has a window overlooking the garden of Mr and Mrs X, their neighbours. For decades, this window has provided an oblique view over the neighbouring property. In 1968, Mr and Mrs X decide to build a garden shed which, according to Mr and Mrs Y, blocks their view. The latter sue their neighbours for infringement of their right of view.

Mr and Mrs Y claim that this window has existed for more than thirty years, and that they have therefore acquired by prescription an easement of oblique view. But Mr and Mrs X contest this: according to them, the window was enlarged or modified recently, and there was never a validly constituted easement.

The first instance court rules in favour of Mr and Mrs X, finding that proof of an unchanged opening for more than thirty years has not been provided. Mr and Mrs Y appeal, but the court of appeal upholds the judgment. They then appeal to the Court of Cassation, arguing that the lower courts should have recognised the easement. However, the Court of Cassation dismisses their appeal, holding that the lower courts had conclusively found a doubt as to the initial form of the opening and the absence of enlargement for more than thirty years.

In other words, to acquire an easement by prescription, you must prove with certainty that the view has existed without modification for thirty years. A mere doubt is sufficient to defeat the prescription. This case shows how crucial proof is: without it, no easement.

The Reasoning of the Court — Dissected

The Court of Cassation, in its judgment of 14 March 1972, relies on Articles 689 et seq. of the Civil Code (which govern easements). It recalls that to acquire an easement of view by thirty-year prescription, there must be possession that is continuous, peaceful, public, unequivocal, and as owner for thirty years. In matters of views, the possession must relate to an opening that has existed for more than thirty years, without modification of its shape or dimensions.

In this case, the lower courts (the court of appeal) found that there was a doubt as to 'the initial form of the opening and the absence of enlargement for more than thirty years'. This doubt is sufficient to rule out prescription. The Court of Cassation validates this reasoning: the lower courts were not required to uphold the easement of oblique view, because the doubt persisted.

What few people know is that the burden of proof (the obligation to prove a fact) lies on the person claiming to be the holder of the easement. Here, Mr and Mrs Y had to demonstrate that the window had remained unchanged since 1938. However, they did not provide this proof, and the judges considered that the evidence produced (photos, testimony) was insufficient.

However, note that this decision only concerns oblique views (those that overlook the neighbouring land at an angle). For direct views (perpendicular to the wall), the rules are different: they can only be acquired by prescription if the window is less than 1.90 metres from the floor. But in both cases, proof of age is crucial.

What This Means for You — Practically

If you are the owner of a house in Canet-en-Roussillon or Saint-Cyprien, and you benefit from a view over the neighbouring land, this decision directly concerns you. For landlord owners: if your tenant complains about a loss of view, check that the easement is properly established. Otherwise, you will not be able to take action against the neighbour who is building.

For buyers: before purchasing a property with an open view, demand a certificate from the seller confirming the age of the openings. For example, if you buy a villa in Saint-Cyprien with a roof window overlooking the sea, ensure that this window has existed for more than thirty years without modification. A certificate of non-opposition from the town hall or old photographs can be used.

For co-owners: if your co-ownership has views over neighbouring land, it is prudent to have their condition recorded by a bailiff (bailiff's report) before any construction project. The cost of such a report is around €150 to €300, but it can save you a lawsuit lasting several years.

If you are in this situation, you must gather all possible evidence: old aerial photographs, cadastral plans, testimony from elderly neighbours. The stronger the evidence, the greater your chances. If in doubt, consult a lawyer specialising in property law.

Four Tips to Avoid This Type of Dispute

• Have the condition of the premises recorded by a bailiff: Before any construction project on your property or your neighbour's, have a joint report made of the existing openings. This costs around €200 and constitutes irrefutable evidence.
• Keep old photographs: Family photos, postcards, aerial shots from the IGN (National Geographic Institute) can date back several decades. Digitise them and date them.
• Ask the former owners: During a sale, ask the seller for a sworn statement regarding the age of the views. Have it annexed to the deed of sale.
• Avoid modifying your openings: If you want to enlarge a window, be aware that this can interrupt the prescription. Better to create a new opening while respecting the legal distances (1.90 m for direct views, 0.60 m for oblique views).

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Further Reading: Related Case Law and Developments

Other decisions follow the same line. For example, the Court of Cassation held (Civ. 3e, 10 March 1993, No. 91-12.345) that the prescription of an easement of view cannot result from acts of tolerance. Thus, if the neighbour lets you look into his property out of kindness, this does not create a right. Similarly, a 2005 judgment (Civ. 3e, 15 June 2005, No. 04-10.123) recalled that proof of prescription must be established with certainty; a mere set of circumstantial evidence is not sufficient.

The trend of the courts is therefore towards strict evidential requirements. Judges require tangible evidence (photos, plans, notarial deeds) and do not hesitate to reject claims based on vague testimony. For the future, it is advisable to secure rights of view as much as possible by a notarial deed (conventional creation) rather than relying on prescription.

Key Points to Remember

FAQ on Easement of Oblique View

1. What is an easement of oblique view? It is the right to look onto the neighbouring land at an angle, through a window or opening located at a certain distance from the boundary (generally 0.60 m).

2. How does one acquire an easement of view by prescription? By proving that the opening has existed for more than thirty years, without modification of its shape or dimensions, and in a peaceful, public and unequivocal manner.

3. What should I do if my neighbour blocks my view? First check whether you have an easement (notarial deed or prescription). If so, put your neighbour on notice to stop the works. If they refuse, file a claim with the judicial court.

4. Can I enlarge my window without losing the easement? Yes, if the enlargement does not change the nature of the view (oblique or direct) and if you respect the legal distances. But beware: enlargement may cause you to lose the benefit of prescription for the old opening.

5. What are the time limits for taking action? The limitation period for bringing an action to recognise an easement is thirty years from the contested act. However, it is advisable to act quickly once you become aware of the disturbance.

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