Further discussion of the strict sanction applicable in case of encroachment in the subsoil

Court decisions concerning encroachments in the subsoil are relatively numerous, and are well settled. A recent decision (Cass 3rd Civ., 11 February 2015, No.13-26.023) confirms the principle according to which the defence of a property may never degenerate into an abuse.

In practice, this question and the judicial response given to it are important, because cases of encroachment are frequent in an urban environment, in particular by way of anchorage (beams) or improvement of a construction in the subsoil of a neighbouring property.

In fact, there is no doubt that an encroachment may concern the subsoil of a property, because, under Article 552 of the French Civil Code, ownership of the soil entails ownership of what is below the soil (Cass 3rd Civ., 3 February 1982). This case law is based on the fact that there is no private-law expropriation, except for the compulsory transfer of rights related to party walls.

Also, any such encroachment, even when made in the subsoil, necessarily harms the owner of the relevant land, who may thus seek a remedy.

In case of encroachment, it is found that the owner has an absolute right to seek the reconditioning of his property: the court thus has no other choice than to grant this request, and (i) the encroaching party may not claim to be acting as a builder in good faith within the meaning of Article 555 of the French Civil Code, and (ii) it is not possible to seek to reach any balance between the interests at stake. Thus, even where the removal of beams would be likely to create severe malfunctions, it is not possible to find a solution equivalent to an indemnification: the structure must be demolished, if the aggrieved owner so wishes (Cass 3rd Civ., 23 March 1999, No. 97-16.974; Cass 3rd Civ., 10 November 2009, No. 08-17.526).

It is also necessary to recall the following:

• The materiality or lack of materiality of the encroachment is of no relevance. Thus, an encroachment of 4 cm may not be deemed immaterial, and must give rise to a remedy (Cass 3rd Civ., 13 November 2002, No. 00-12.267)
• The owner aggrieved by the encroachment does not have to demonstrate that he suffered an actual loss (Cass 3rd Civ., 23 March 1999, referred to above)
• It matters little whether or not the construction has been erected in accordance with the issued building permit (Cass 3rd Civ., 8 November 1978, No. 77-13.563)
• The said action is not subject to any statute of limitations (Cass 3rd Civ., 11 February 2015, referred to above).

The person who committed the encroachment is thus ineluctably exposed to the risk that the part of the construction that encroaches on the neighbouring land shall be demolished, regardless of the cost of such part, and even where, because of such demolition, the construction becomes unfit for its intended use.

Such strict position raises questions. Indeed, it is objectively possible to deplore the extremely automatic character of the current case law (existence of an encroachment = demolition). The court might usefully assess the loss actually suffered and take into account the possible good faith of the person who carried out the works. Solutions other than the demolition might objectively be found depending on the case at hand, for instance by ordering the transfer of the property affected by the encroachment, or by deciding to order the payment of occupancy indemnities to the owner of the occupied subsoil, as is currently the case, in particular in Germany.