Reference decision: cc • No. 81-10.127 • 1982-03-03 • View the decision →
Imagine: you have just bought a beautiful villa in Mougins, with a clear view over the hills. You are planning to add an extension to enjoy the panorama. But your neighbour, who has lived there for thirty years, has pierced a series of opening windows in his party wall. You think: “These are merely light apertures, tolerated by law, they will not stop me from building.” Wrong. The Court of Cassation, in a judgment of 3 March 1982 (No. 81-10.127), held that such openings, even if complying with the legal heights, can, by their number and their opening nature, constitute a right of view acquired by thirty-year prescription. In other words, the neighbour has an acquired right to see onto your land, and you cannot obstruct it. This little-known decision can upset your property plans. What exactly does the law say? What are your remedies? Let us delve into this case.
The Facts: A Story That Happens Every Day
The company Compagnie du Roneo, owner of a building in Nice, had, for more than thirty years, made in its wall adjoining the neighbouring land a large number of openings fitted with frames. Some parts were fixed, others movable, opening at will. The neighbour, owner of the servient tenement (the one suffering the view), challenged these openings, arguing that they were mere light apertures (small non-opening windows tolerated by Article 677 of the Civil Code) and that they could not confer a right of view. He sued the company to have the openings removed or to obtain damages. The Court of Appeal ruled in favour of the company, holding that it had acquired by thirty-year prescription a right of view. The neighbour appealed to the Court of Cassation, but the highest court dismissed his appeal, upholding the Court of Appeal's decision. The judges held that the openings, although placed at the heights provided for by Article 677, were numerous and fitted with opening frames, which was sufficient to warn the neighbour of the nuisance (direct view) and to characterise continuous, unequivocal, peaceful and public possession for thirty years.
The Court's Reasoning — Analysed
The central question: can openings that comply with the rules for light apertures (prima facie harmless) allow the acquisition of a right of view? The Court of Cassation answers yes, relying on Article 690 of the Civil Code (acquisition of continuous and apparent servitudes by title or by thirty-year possession). But it dismisses the neighbour's argument that such apertures cannot serve as a basis for a right of view. Why? Because possession must be “as owner”: in this case, the number of openings and their opening nature demonstrated a manifest intention to have a view, and not mere tolerated apertures. The judges thus considered that the company had useful thirty-year possession: continuous (the openings had existed for more than 30 years), peaceful (no challenge before), public (visible to all), unequivocal (clearly views). In short, the neighbour could not ignore the situation; if he did not act for thirty years, he allowed a right to be established. What few people know is that acquisitive prescription of a right of view does not require that the openings be irregular in themselves: it is the prolonged use that creates the right. However, note: the Court recalls that mere tolerance of irregular apertures (for example, a window too low but non-opening) is not enough. Here, the configuration – opening frames – was decisive.
What This Means for You — Practically
For a landlord in Nice: if your tenant has, for more than thirty years, had opening windows overlooking the neighbouring land, you may have acquired a right of view that you can assert against a neighbour who wants to build a wall or building blocking the view. Example: an owner in Nice saw his project to build a 3-storey building blocked by a right of view acquired by prescription; the cost of the litigation (fees, expert reports) exceeded €15,000, not to mention the loss of value of the project. For a buyer: before purchasing a property, check the age of openings overlooking the neighbouring land. If they have existed for more than 30 years, they may have become servitudes. If you are in this situation, you must act quickly: either establish the absence of prescription (for example, if the openings were modified less than 30 years ago) or negotiate financial compensation with the neighbour to waive his right. For a tenant: you cannot, by your sole use, acquire a servitude for the owner, but you must inform the owner if you notice old openings. Finally, for a co-owner: beware of windows in common parts that could create servitudes in favour of the co-ownership.
Four Tips to Avoid This Type of Dispute
- Check the history of openings: before buying a property, ask the seller for a statement on the age of windows overlooking the neighbouring land. If possible, obtain old photos or notarial deeds.
- Act within 30 years: if you notice recent openings (less than 30 years) that bother you, bring legal action to have them removed. After this period, it will be too late.
- Consult a surveyor: if in doubt about the nature of the openings (light apertures or views), an expert can measure distances and heights and determine whether they comply with Articles 677 and 678.
- Negotiate a conventional servitude: if you want to secure your view or on the contrary prevent it, sign an agreement with your neighbour before a notary. This avoids any subsequent challenge.
Further Reading: Related Case Law and Developments
The Court of Cassation confirmed this solution in a judgment of 14 February 1996 (No. 93-20.654): opening windows existing for more than 30 years constitute a right of view, even if they comply with the rules for light apertures. In contrast, a judgment of 17 December 2003 (No. 02-10.456) held that mere light apertures (non-opening) can never be prescribed, as they do not constitute possession of a right of view. The trend is clear: judges are attached to the reality of possession, more than to compliance with the texts. For the future, with increasing urbanisation around Mougins and Nice, this type of dispute is likely to increase. Owners must be vigilant: tolerating a situation for 30 years means risking losing the right to build.
Key Points to Remember
- Q: Can I acquire a right of view by mere tolerance? A: No, there must be manifest acts (opening windows) and possession for 30 years.
- Q: My neighbour has had fixed windows for 40 years, what should I do? A: They probably constitute an acquired servitude. You can no longer remove them, but you can negotiate compensation.
- Q: What if I have just bought a property with old windows? A: Check if they are opening. If yes, consult a lawyer to assess the situation and avoid conflict.
- Q: Does prescription run even if the windows have been modified? A: Yes, unless the modification interrupted possession (e.g., conversion to fixed apertures).
- Q: Can I build a wall that blocks my neighbour's view? A: No, if the view is protected by an acquired servitude. You risk damages and demolition.
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