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French property – building on the land of a neighbour

This article is for general information only. You should only act or refrain from acting after receiving full professional advice on the facts of your particular case. This article does not constitute investment advice.

A common situation in France is the person who deliberately or inadvertently builds on a neighbour’s land. This usually involves building dividing walls or garage walls. It can arise on a sale of land when a purchaser in good faith buys a property which has partially been built on neighbouring land.

Article 545

The starting point is Article 545 of the Civil Code which provides that no one is required to cede any part of the land they own except for reasons of public utility and with compensation. France’s Supreme Court has taken a hard line in ordering demolition even if the encroachment is on very small part of the land, in one case half a centimetre.

Considerations such as the proportionality of demolition or the behaviour of the parties are irrelevant. Demolition will be ordered even if this in turn entails a much larger demolition because of say the structural nature of the wall. If the neighbour knew about the encroachment and said nothing whilst it was being built he can still demand its demolition after the works are completed. His silence cannot be deemed to be consent.

The financial loss of the neighbour is also irrelevant. The loss of a few square centimetres of land may have no financial effect on the value of the neighbour’s property but a major loss to the other party. This is irrelevant. All this seems quite extreme in English law where the courts are more likely to find that rights have been waived if no objection is made or apply principles of equity if demolition is disproportionate. This is not how French law works.

Bornage

If there is any doubt you should have a “bornage” before you start any works. This is a delimitation by a specialist surveyor (géometre) who works out where the boundary is. This is done in consultation with the neighbour and is then binding on both parties. A detailed plan is produced and usually markers are put on the ground. The cadastral plan is usually of no use in these matters. It can take some time for this to happen especially if the neighbour is not cooperative.

Buying property

If the seller does not disclose a boundary dispute which he is obliged to do the purchaser will be liable to the neighbour. The purchaser will have a claim against the seller. In practical terms the only way to find out will usually be to speak to the neighbours before you buy the property.

February 2017

David Anderson

@SAPLaw on Twitter