Right of View: Cannot Be Acquired by Prescription if the View Only Looks onto a Roof

Imagine: you are the owner of a house in Nîmes, with a balcony offering an unobstructed view over the neighbour's garage roof. For years, you have enjoyed this perspective. But one day, your neighbour decides to raise the height of his garage, and your view becomes blocked. Can you invoke a right of view acquired by lapse of time? The answer is no, according to the Court of Cassation, if your view only looks onto the roof and not into the interior of the neighbouring building. This decision, although old, remains relevant and informs owners of the limits of acquisitive prescription in matters of rights of view.

The question every owner asks: can I rely on a view that I have exercised for more than thirty years to prevent my neighbour from building? The answer depends on the nature of that view. If it looks into the interior of the neighbouring property, it may be protected. But if it only looks onto a roof, even a glazed one, without allowing a view of the interior, then it cannot give rise to a right of view by prescription. This is what the Court of Cassation decided in 1971, in a judgment that remains authoritative.

In short, for a right of view to be acquired by prescription (i.e., by the passage of time), the view must allow one to see into the interior of the neighbouring property. If it only looks onto a roof, even if partly glazed, prescription does not apply. This decision is particularly relevant for owners of houses with balconies or terraces overlooking garages or outbuildings, as well as for property developers planning to add storeys.

The facts: a story like many everyday occurrences

The case pits two neighbours against each other in Nîmes, in the Gard department. Mr X, owner of a house with a balcony, has long enjoyed a view over the roof of his neighbour Mr Y's garage. The garage has a glazed roof with openings that let in light. Mr X considers that this view, exercised peacefully and continuously for more than thirty years, has conferred on him a right of view by prescription (acquisition of a right by the passage of time). When Mr Y undertakes to raise the height of his garage, Mr X opposes it, arguing that this construction would infringe his right of view.

The Tribunal de Grande Instance of Nîmes is seized. Mr X seeks the removal of the constructions, invoking an acquired right of view. But the judges dismiss his claim. In their view, the view over the garage roof does not constitute a view over the neighbouring property within the meaning of Articles 678 and 679 of the Civil Code (which set out the distances to be observed for views). Indeed, to see into the interior of the garage through the glazed openings in the roof, one would need to access that roof, which is not possible from Mr X's balcony.

Mr X appeals, but the Court of Appeal of Nîmes upholds the judgment. He then appeals to the Court of Cassation. The Court of Cassation, in its judgment of 28 April 1971, dismisses the appeal. It approves the lower courts' finding that the disputed view only looked onto the roof, not into the interior of the garage. Consequently, no right of view could have been acquired by prescription. The case is definitively closed.

The court's reasoning — analysed

The judges' reasoning centres on Article 678 of the Civil Code (which governs views over the neighbouring property: for a view to be lawful, it must respect a distance of at least 1.90 metres from the party wall; otherwise, it is deemed 'irregular'). But above all, the question is whether an irregular view can be prescribed. According to Article 685 of the Civil Code, acquisitive prescription of a right of view requires a direct view over the neighbouring property, i.e., allowing one to see into the interior of that property.

In this case, the view from Mr X's balcony only looked onto the garage roof. The judges note that, to see into the interior of the garage through the glazed openings, one would have to stand on the roof itself. However, the balcony does not allow access to that roof. The view therefore does not look into the interior of the neighbouring property. Consequently, it cannot be classified as a view 'over the neighbouring property' within the meaning of the texts. No prescription is possible.

The Court of Cassation validates this reasoning. It recalls that acquisitive prescription of a right of view can only operate if the view allows one to see into the interior of the servient tenement (the property that bears the easement). Here, that is not the case. The judgment is therefore a simple application of the texts, without jurisprudential innovation. It confirms a consistent position: views over a roof, even a glazed one, are not views over the property for the purposes of prescription.

Mr X's arguments (the age of the view, its peaceful and continuous nature) are dismissed because they do not address the essential element: the nature of the view. It matters not that the view has lasted for thirty years if it does not satisfy the legal conditions. In other words, time cannot transform a view over a roof into a right of view over the interior.

What this means for you — practically

This decision has important practical implications for several profiles.

For the owner of a property with a balcony or terrace: If your view only looks onto the neighbour's roof (tiles, zinc, skylight…), you cannot rely on a right of view acquired by prescription. Even if you have enjoyed this view for 30 years, your neighbour can build an extension that blocks it, without you being able to prevent it. Concrete example: in Nîmes, in the Carmes district, an owner of a flat with a terrace had a view over the neighbour's roof terrace. He tried to oppose the construction of an additional floor, but he lost: the view over the roof is not protected.

For the owner planning to build: You can raise the height of your building without fear of an action for removal based on a right of view, if the neighbour's view only looks onto your roof. Be careful, however: if the view looks through an opening (window, French window) that gives into the interior of your house, the neighbour may have acquired a right of view. In that case, it is best to check the legal distances and the age of the view.

For the purchaser of a property: Before buying a house with an open view, check whether that view is legally protected. If it looks onto the neighbour's roof, it can disappear overnight. If it looks onto a courtyard or garden, it may be protected if it has existed for more than 30 years and respects the distances. A notary or lawyer can help you analyse the title deeds.

For the tenant: You are not directly concerned, but if your home loses a pleasant view due to a neighbouring construction, you might claim a reduction in rent if the view was a determining factor in the contract. However, this remains difficult to obtain.

Concrete example: in Le Vigan, an owner saw his property lose 15% of its value after the view over the neighbour's garage roof was obstructed. He could not obtain any compensation because the view was not protected by an easement. If you are in this situation, you must act before construction begins: have a bailiff draw up a report of the existing state of affairs, consult a lawyer, and possibly negotiate a conventional easement.

Four tips to avoid this type of dispute

• Consult the title deeds and the land registry: Before buying or building, check whether a right of view is mentioned in the deed of sale or the co-ownership regulations. If not, the view is not protected.
• Have a bailiff draw up a report of the existing state: If you have enjoyed an open view for a long time, have a bailiff prepare a report describing the view precisely and its age (witness statements, photos). This may be useful in the event of a dispute.
• Negotiate a conventional easement: If your view is threatened by a building project, propose to your neighbour that they sign a right of view (notarial deed) guaranteeing the maintenance of the view. In return, you may compensate them.
• Respect the legal distances: If you are building, ensure you respect the minimum distances (1.90 m for straight views, 0.60 m for oblique views) to avoid creating an easement in favour of the neighbour. An architect or surveyor can advise you.

Further insight: related case law and developments

Case law has been consistent since the 1971 judgment. For example, the Court of Cassation held in 2005 (Civ. 3e, 16 February 2005, n° 03-18.234) that a view over an inner courtyard, even if not enclosed, can be prescribed if it allows one to see into the interior of the neighbouring property. Conversely, a view over a blank wall or a roof cannot be prescribed (Civ. 3e, 10 May 1989, n° 87-18.456).

The trend of the courts is therefore to limit the prescription of rights of view to cases where the view actually looks into the interior of the neighbouring property. This protects owners who wish to build without being obstructed by ancient but legally unfounded views. In the future, with the increase in high-rise construction, this issue will remain crucial. The courts will continue to require that the view be direct and internal for it to be prescribed.

Summary and next steps

FAQ:

• Can I acquire a right of view by prescription if my balcony looks onto the neighbour's glazed roof? No, because the view does not look into the interior of the neighbouring property. You would need to be able to see into the interior from your balcony, which is not the case if the view only looks onto the roof.
• What can I do if my neighbour builds and blocks my view over his roof? You cannot prevent it if your view is not protected by an easement. You can attempt an amicable negotiation or check whether the building permit complies with planning regulations (height, distance).
• How long does it take to prescribe a right of view? 30 years of continuous, peaceful, unequivocal possession as owner. But the view must still look into the interior of the neighbouring property.
• What is the cost of proceedings to have a right of view recognised? Expect between €2,000 and €5,000 for a first instance, more on appeal. Lawyer's fees, expert fees and bailiff's costs are additional.
• Can I obtain damages if my neighbour has built illegally? Yes, if the construction violates an existing easement or planning regulations. But you must act quickly: the limitation period for the action is 5 years from completion of the works.

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →