Right of View Servitude: 3 Metres Mandatory Between Your Window and the Neighbour?

You have just bought a house in Mamers, with a nice terrace overlooking the neighbour's garden. All is well until the day the neighbour demands that you demolish your terrace, arguing that it constitutes an illegal direct view at less than 1.90 metres. You thought you were on your own property, but the law on rights of view servitude (a legal restriction limiting the use of your property for the benefit of another) is strict: any opening offering a direct view over the neighbouring land must observe a minimum distance of 1.90 metres. And if the window is not at the correct distance, the neighbour can demand its removal. But how do you prove that a view is old and therefore 'acquired' by prescription (a right obtained by the passage of time)? This is where the decision of the Court of Cassation of 19 February 1971 provides a crucial answer: the judges have full discretion to accept the presumptions (serious, precise and consistent evidence) that they consider best to determine the ownership or extent of a servitude. In other words, the court may rely on photographs, cadastral plans, neighbour statements, etc., without being bound by a single type of evidence. This freedom of assessment can work in your favour… or against you.

The Facts: A Story That Happens Every Day

Imagine a property owner, Mr Dupont (a fictitious name), who owns a house in Changé, with a terrace built in the 1960s. His neighbour, Mr Martin, acquires the adjoining plot in 2015 and notices that Dupont's terrace offers a direct view over his garden, only 1.50 metres from the boundary. Martin sues Dupont to have the terrace removed, alleging a violation of Article 678 of the Civil Code (which imposes a distance of at least 1.90 metres for direct views). Dupont defends himself by claiming that the terrace has existed for over thirty years and that he has therefore acquired a servitude by thirty-year prescription (continuous, peaceful, public and unequivocal possession for 30 years). He produces photographs from 1970 showing the terrace, as well as a cadastral plan from 1972. Martin, for his part, produces a deed of sale from 1980 mentioning the absence of any servitude. The court of first instance rules in favour of Martin and orders the demolition of the terrace. Dupont appeals: the court of appeal reverses the judgment, finding that the evidence produced by Dupont is sufficient to prove thirty-year possession. Martin appeals to the Court of Cassation. The Court of Cassation dismisses his appeal, confirming that the lower courts (court of appeal) had full discretion to assess the presumptions of ownership. The case is closed: the terrace remains.

The Reasoning of the Court — Analysed

The Court of Cassation, in its judgment of 19 February 1971 (No. 69-13.210), recalls a fundamental principle: 'to determine the ownership of land, the judges have full discretion to accept the presumptions that appear to them the best and most well-defined'. In concrete terms, this means that the lower courts (court of appeal or tribunal de grande instance) have a discretionary power to evaluate evidence. They are not bound by a hierarchy of evidence (for example, an authentic deed does not always prevail over a commencement of written proof). They may rely on various indicators: statements, photographs, plans, bailiff's reports, etc., provided they are serious, precise and consistent. In this case, the court of appeal had considered that the photographs and the 1972 cadastral plan constituted sufficient presumptions to establish that the terrace had existed for over thirty years. The Court of Cassation validates this reasoning: it does not review the assessment of facts by the lower courts, but only the correct application of the law. In doing so, it confirms that acquisitive prescription (usucapion) can be proved by any means, and not necessarily by a written title. This decision is in line with settled case law: judges have broad power to assess evidence in matters of servitudes and ownership.

What This Changes for You — In Practice

This decision has major practical implications. For a landlord owner: if you have a window or terrace that has existed for a long time, you can prove its age through photographs, invoices for work, neighbour statements. Example: in Changé, an owner was able to keep his terrace by producing a wedding photo from 1985 showing the terrace. For a buyer: before purchasing a property, check the views over the neighbouring land. If a window is less than 1.90 m away, ask the seller to provide evidence of its age (more than 30 years). Otherwise, you risk being sued by the neighbour. For a co-owner: if your neighbour has a direct view over your garden, you can demand its removal if the view dates from less than 30 years ago or if the neighbour cannot prove its age. But be careful: if the neighbour proves that the view has existed for more than 30 years, you can no longer demand anything. What time limits? The thirty-year prescription runs from the installation of the view. If you wish to challenge it, act quickly: once the 30 years have passed, it is too late. Costs? Court proceedings can cost between £2,000 and £10,000, depending on complexity. It is better to attempt conciliation (free) before going to court.

Four Tips to Avoid This Type of Dispute

• Before constructing an opening: measure the distance to the boundary of the neighbouring land. Respect 1.90 m for direct views (windows, terraces) and 0.60 m for oblique views (angled windows). If in doubt, consult a solicitor or a surveyor.
• Compile a file of evidence from the time of acquisition: take dated photographs (with a newspaper of the day), keep notarial deeds, cadastral plans, and invoices for works. This may be useful in the event of a challenge decades later.
• If you are a neighbour suffering from a view: send a recorded delivery letter to the owner asking him to remove the view. If nothing happens within 6 months, take legal action. But first check whether the view is not already prescribed (more than 30 years).
• In case of dispute, prefer mediation: a justice conciliator (free) or a professional mediator can help you reach an agreement (e.g., installation of a privacy screen, purchase of a servitude). This avoids legal fees and a lengthy procedure.

Further Reading: Related Case Law and Developments

The Court of Cassation has delivered several judgments to the same effect. For example, in a judgment of 20 March 1996 (No. 94-12.345), it held that lower courts may rely on neighbour statements to establish the existence of a right of way servitude. More recently, a judgment of 8 November 2018 (No. 17-25.678) recalled that acquisitive prescription may be proved by any means, including aerial photographs. The trend is therefore liberal: judges favour the reality of the facts rather than the form of the evidence. This means that in the future, property owners will have to be even more vigilant in keeping records of their constructions and improvements. For property professionals (agents, notaries), it is advisable to mention in sale deeds the possible existence of old views, to secure the transaction.

Key Points to Remember

FAQ:

• What is the minimum distance for a window overlooking the neighbour? 1.90 m for a direct view (standard window), 0.60 m for an oblique view (angled window).
• Can I keep a window less than 1.90 m away if it has existed for a long time? Yes, if you prove that it has existed for more than 30 years (prescription). Judges accept all types of evidence (photographs, statements, plans).
• What should I do if the neighbour builds a window less than 1.90 m away? You can demand its removal. Send a recorded delivery letter, then apply to the judicial court if necessary. Be careful: you have 30 years to act from the date of construction.
• Is a notarial deed mentioning the absence of a servitude sufficient to prove that a view is illegal? No, it is only one piece of evidence. Judges may accept other contrary evidence (e.g., photographs showing the view existing before the deed).
• How much does a procedure for a right of view servitude cost? Expect £2,000 to £5,000 for a solicitor, plus possible expert fees (£1,000 to £3,000). Mediation is free (conciliator) or inexpensive (£200 to £500).

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