Right of View Without Permission: Court of Cassation Rules in Favour of Prescription

Imagine: you are the owner of a flat in Le Barcarès, with a beautiful sea view. One morning, your downstairs neighbour cuts a window in the external wall, giving his tenants a bird's-eye view of your terrace. You are furious, but what does the law say? This decision of the Court of Cassation of 21 April 2022 answers a question that troubles many co-owners: can a right of view be acquired without planning permission or the consent of the general meeting?

The right of property is sacred, but it is not absolute. Article 544 of the Civil Code reminds us: ownership is the right to enjoy and dispose of things in the most absolute manner, provided they are not used in a way prohibited by laws or regulations. And the abnormal neighbourhood disturbance limits this right. So, when an external wall is breached without authorisation, can the neighbour who suffers demand the removal of the view?

The Court of Cassation has ruled: the absence of a prior planning declaration and the lack of authorisation for the works by the general meeting of co-owners do not prevent the acquisition by prescription of a right of view. In short, if the window has been there for more than thirty years, it has become lawful, even if it was installed unlawfully. A decision that is surprising and deserves closer examination.

The facts: a story that happens every day

Mr X is the owner of a flat in Le Barcarès, in a building subject to the co-ownership regime. In 1985, he had a window cut in the external wall of his unit, providing a direct view over the neighbouring property, owned by Mr Y. The latter, unhappy, sues Mr X to obtain the removal of the window, arguing that it constitutes an abnormal neighbourhood disturbance and that it was made without a prior planning declaration or authorisation from the general meeting of co-owners.

The case is brought before the Tribunal de Grande Instance of Perpignan, which rules in favour of Mr Y: it orders the removal of the window and awards damages to Mr Y. Mr X appeals. The Montpellier Court of Appeal overturns the judgment: it considers that Mr Y has not proved the existence of an abnormal neighbourhood disturbance and that, in any event, the right of view has been acquired by thirty-year prescription. Mr Y appeals to the Court of Cassation.

Before the Court of Cassation, Mr Y argues that the lack of planning permission and general meeting authorisation renders the window unlawful, and that unlawful possession cannot give rise to prescription. The Court dismisses his appeal. It recalls that acquisitive prescription (becoming owner through prolonged use) can apply even if the property was acquired or built in violation of planning or co-ownership rules. Only continuous, peaceful, public and unequivocal possession for thirty years matters.

The reasoning of the court — dissected

To understand the decision, we must go back to basics. A right of view (servitude de vue) is a charge imposed on one piece of land (the servient tenement) for the benefit of another (the dominant tenement). It allows the owner of the dominant tenement to have a view over the servient tenement. In principle, a servitude can only be created by deed (notarial act) or by thirty-year prescription. Acquisitive prescription requires continuous and uninterrupted, peaceful, public, unequivocal possession, and possession as owner.

The question was: can possession that begins with a violation of planning rules or the co-ownership regulations be characterised as 'peaceful'? The Court of Cassation answers yes. It relies on Article 544 of the Civil Code (right of property) and on the principle that no one may cause another a disturbance exceeding the normal inconveniences of neighbourhood. But here, the window had existed for thirty years without Mr Y ever protesting. The disturbance was therefore not established.

The Court of Cassation confirms consistent case law: administrative or contractual unlawfulness does not prevent prescription. This is logical: prescription aims to secure long-standing factual situations. Otherwise, one could challenge constructions decades old on the ground that they did not comply with the building permit of the time. The lower courts have sovereignly assessed that the possession was peaceful, because Mr Y had never taken action for thirty years.

However, the Court specifies that prescription cannot apply if the possession is equivocal (for example, if the view was tolerated on a precarious basis). But in this case, the window was open and visible to all, without ambiguity.

What this changes for you — concretely

For landlord owners: if your tenant complains about a view from the neighbouring property, know that the mere fact that the window was cut without authorisation is not enough to demand its removal. You must demonstrate a current disturbance or that prescription has not been acquired. In Perpignan, where the property market is tight, a window with a view can increase the rental value by 10 to 15%.

For co-owners: if a neighbour cuts a window without authorisation from the general meeting, you must act quickly. Prescription runs from the completion of the works. Wait too long (thirty years) and you will lose any remedy. On the other hand, if you act within thirty years, you may obtain the removal of the window on the ground of non-compliance with the co-ownership regulations.

For purchasers: before buying a property with a view, check whether the window is old. If it is more than thirty years old, the right of view is acquired, even without a deed. This protects you against claims from the neighbour. But if the window is recent, require the seller to produce the planning permission and the co-ownership agreement.

For neighbours who suffer a view: do not delay in taking action. If the window is less than thirty years old, you can bring an action for removal. Beyond that, it is too late. Do not let time pass: have the infringement noted by a commissaire de justice (formerly bailiff) and consult a lawyer.

Four tips to avoid this type of dispute

• Consult the co-ownership regulations before any cutting. Even if your project complies with the Local Urban Plan, the regulations may prohibit modifying facades without the consent of the general meeting. A window cut without authorisation may be ordered to be blocked up.
• Make a prior declaration of works. For cutting an external wall, a prior declaration is often required (except in certain cases). Its absence may result in a fine and an obligation to restore the premises.
• Negotiate a right of view with your neighbour. Rather than risking a lawsuit, offer your neighbour a conventional right of view (by notarial deed). This secures your view and avoids conflicts.
• Act quickly if you are the victim of a new view. As soon as you notice a cutting, send a registered letter with acknowledgement of receipt to your neighbour to mark your opposition. This interrupts prescription. Consult a lawyer to bring an interim injunction.

Further reading: related case law and developments

This decision is in line with consistent case law. The Court of Cassation had already ruled, in a judgment of 18 November 2015 (no. 14-24.203), that the absence of a building permit did not prevent acquisitive prescription of a right of view. Similarly, in a judgment of 13 January 2021 (no. 19-22.347), it specified that prescription could apply even if the works had been carried out in violation of the co-ownership regulations.

On the other hand, case law remains strict on the equivocal nature of possession. If the view was tolerated on a precarious basis (for example, a neighbour who temporarily accepts a window in exchange for a consideration), prescription does not run. Moreover, prescription cannot be invoked if the view was created by violence or trespass.

The trend is therefore clear: courts favour the legal security of long-standing situations. For the future, if you want to secure a view, have it recorded in a notarial deed. Prescription is a double-edged sword: it can protect you or harm you.

Checklist before acting

• How long has the window existed? If more than thirty years, the right of view is acquired. If less, you can act.
• Has there been any formal opposition? A registered letter or legal action interrupts prescription. Without this, the time limit runs.
• Is the possession peaceful? If the window was installed by force or secretly, prescription may be excluded.
• Do the co-ownership regulations prohibit cutting? If so, you may obtain removal even if prescription is not acquired, on the ground of violation of the regulations.
• Have you consulted a lawyer? Before acting, professional advice is essential to assess your chances and risks.

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