Boundary Walls and Fences

1. 1. Is it a Private or Common Wall?
2. 2. Rights Concerning Private Boundary Walls
3. 3. Planning Rules on New Construction
4. 4. Maintenance of Common Boundary Wall
5. 5. Constructing Against Common Boundary Wall
6. 6. Increasing Height of Common Boundary Wall
7. 7. Relinquish Shared Ownership of Wall
8. 8. Hedges

1. Private or Common Wall?

The ownership of the wall or fence that separates you from your neighbour is not always clear.

The rules that apply will depend on the circumstances of each case.

The presumption applies whether or not the wall separates two gardens, two courtyards, a courtyard and a garden or two enclosed areas in fields.

However, a wall that separates a courtyard or garden from a wood or a field is presumed to belong to the owner of the courtyard or the garden.

The presumption of a shared wall does not apply if the grounds are completely enclosed, in which case the wall is presumed to belong to the owner of the enclosed grounds.

By the same token the gable end wall of a property that adjoins the garden or courtyard of a neighbour is presumed to belong to the owner of the property.

The common wall of two buildings is presumed to be shared only if the wall is of the same height and width. So, if of different height and width, the common wall relates only to the smaller of the two buildings.

The presumption of common walls also applies in relation to other types of enclosure including fences, hedges, ditches and embankments, provided always that the boundary is between two contiguous pieces of property.

The same applies to trees and plants in a shared hedge so that both tree and plants are shared.

However, in both cases there is only a presumption in favour of private ownership. If the other party can bring incontrovertible proof that it is not private then this presumption could be overturned.

The proof may be one of three main pieces of evidence:

• i. Title
• ii. Features
• iii. Prescription

i. Title

If there is clear title to the property in the form of notairal acte (sale or gift) or a court judgement. If the documentation in relation to the decision is only held by one of the parties (present or past) there is merely a presumption. Where, however, the documentation is held and signed by both parties then this will be considered as absolute proof.

ii. Features

Second, the law recognises that there are certain features on a wall that will give a presumption as to whether or not it is private or shared.

Where there is a clear slope on the top of the wall then it is presumed to be owned by the person in which direction the slope falls.

Where the top of the wall is flat(ish) then it is presumed to be shared.

If the wall contains on it a coping stone, cornice or corbel on one side of it then the wall is presumed to be owned by the person where these features are visible.

There may also be other visible signs that show ownership.

Where the features show both private ownership and shared ownership then the matter would need to be considered by a court of law.

Where there is a dividing wall between two properties that are located at different levels then the law presumes that the wall is owned by the property that benefits from the wall eg a retaining wall that prevents soil falling back onto property on lower area would be owned by this person.

If it clearly benefits no one or both benefits equally then the law presumed it to be shared.

iii. Prescription

Finally, there may be proof by 'prescription', if you can prove that you have been the sole owner of the wall for the past thirty years.

Where prescription conflicts with the deeds, then prescription will be the correct presumption, against a title that is older.

In order to prove ownership in such a case it would be necessary to provide documentary evidence, for instance, that you have assumed sole responsibility for the repair and maintenance of the wall over this period.

The evidence of neighbours would also be important, if available.

2. Private Boundary Walls

Owners have a right in law to enclose their property, although there are rules that govern how this may be undertaken, including local planning regulations.

If you live on a housing development (lotissement) then there may be particular rules that apply.

The rural legal code considers a property to be enclosed if its border has a hedge of 1.20m or more in height, or a ditch at least 0.50m deep.

The courts take no account of the fact that you may have planning consent and that it may have been an accidental error, made in good faith. You can be required to take it down and do the work again.

By same token, however, there is no need to feel you need to fence back from the boundary line.

Consult with your neighbour and confirm in writing.

If necessary, undertake a process of bornage to establish the precise boundaries.

Whilst, in general, you are allowed to enclose your property it is not possible if it is considered to be against the public interest.

Thus, if your property is alongside the sea, your border cannot prevent people walking along the coastline. Similarly, if you live alongside the river, and there is a dragging lane, you cannot enclose this lane.

You also have to have regard to servitudes of visibility, notably in relation to properties at a dangerous road junction or crossroads. In such circumstances you may not be permitted to erect an enclosure above a certain height.

Neighbours have a right of access through your land if they cannot get to their property from the public highway.

This right of way may have been established in law or by convention. The right is called le droit de désenclavement.

Law has established you can still enclose the land, provided you do not impede access and that you leave sufficient space for them to gain access, including access with farm machinery if relevant.

Thus, courts have determined that a boundary wall that was constructed merely to deprive a neighbour of sunshine had to be removed.

Similarly, a wall that was constructed that had the aim to reducing the view of neighbour had to be demolished.

3. Planning Rules on New Construction

Planning permission is not required to construct a boundary fence or wall.

Nevertheless, in certain communes you are required to submit a works notice (declaration préalable) to the mairie.

This notice is mandatory in those communes where a local plan is in place, where it is within a protected area, or where it is otherwise decreed by the Direction départementale d’équipement (DDE) (county planning and highways department).

You also need to submit a works declaration if you propose that the boundary fence or wall is going to be more than 2m in height.

You have no need to submit a works declaration if the boundary is to consist of a hedge or a ditch.

Similarly, the repair of an existing wall or fence or its replacement by an identical boundary does not need a notice. To make a works declaration you should go to your local mairie and get a copy of the documents required.

You will need to complete three copies and attach a site plan, a plan and summary of the proposed works, including dimensions and materials to be used.

The mairie (or DDE if the mairie are not a planning authority) have a month to make a decision.

In the absence of any response within this timescale permission is deemed to have been given implicitly. You can then proceed with the work, although there remains a right of appeal to third parties to the works.

If permission is refused then the mairie must advise you why it has been refused, which may related to traffic safety, the rules of the local plan or the existence of a public servitude.

There are particular rules that govern the installation of an electric perimeter fence.

You will need to ensure that the fence is properly marked with the sign cloture électrique at least every 50 metres.

You should submit an application to your local mairie setting out the details of the fence, which must comply with national regulations governing the quality and safety of the materials to be used and the connection.

4. Maintenance of a Common Boundary Wall

In practice, most neighbours will undertake maintenance of that part of the boundary on their side.

However, where major expenditure is required then the agreement of both parties is required.

In your neighbour is reluctant to participate you will need to go to the tribunal d’instance to secure their participation.

If you decide to undertake the work yourself, that work does not then transfer the boundary to you.

In urban areas the law provides that you can oblige your neighbour to share in the costs of the construction (and repair) of a common boundary.

The law advises a height of 3.20 metres in larger towns and cities and of 2.60 metres in height in those areas with less than 50000 inhabitants. Neighbours can agree a different height.

The purpose of this rule is to avoid construction of two different boundaries, in juxtaposition to one another, likely to cause a nuisance or unnecessary expense.

However, if you have already proceeded to build or repair a common wall you cannot then oblige your neighbour to meet any of the costs.

Conversely, your neighbour can oblige you to concede half the boundary wall you may have constructed!

Clearly, therefore, if you wish to construct or repair a shared boundary, common sense dictates that you should approach your neighbour in the first instance.

If agreement cannot be reached, you will need to pursue the matter through the tribunal de grand instance where the use of an avocat is obligatory.

5. Constructing Against a Common Wall

In principle, each party has the right to construct against a shared wall or to lay supporting beams upon it, but anyone envisaging such works should proceed with great care because of the risk of legal action.

In construction terms the basic rule that applies is that anyone proposing to construct on a boundary wall is obliged to leave a space of at least 5.4cm width on the side of the neighbour, or at least half the width of the wall.

Whilst the consent of the neighbour is not formally required for construction work, the law presumes that at least some attempt should be made for it to proceed on a mutually agreeable basis.

Normally, plans should be drawn up and the signature of the neighbouring owner obtained to the plans.

If the works are complicated or substantial then the advice of a builder and/or architect should also be obtained.

It may also be necessary to apply for planning permission, for which purpose the local mairie should be consulted.

If the neighbour opposes the works (because they consider that either it will impair the solidity of the wall or it infringes on the enjoyment of their own property), then recourse is to a tribunal d’instance.

The court can either authorise the works or require that they be stopped, and that it be either modified or demolished.

The use of an avocat is not obligatory in these circumstances. The court will appoint an appropriate expert to advise on whether or not the work should be allowed to proceed and, if so, on what terms.

If the court grants permission for the works to proceed, but it continues to be opposed by the neighbour, then the case would need to be considered by the tribunal de grande instance, where the use of an avocat is mandatory. The court can award damages if they consider it appropriate.

6. Increasing the Height of a Common Wall

A property owner has the right to increase the height of a common wall without needing to obtain the consent of their neighbour.

In principle, there are no restrictions on the height to which a wall can be built.

The newly extended part of the wall will belong to the party that has constructed it, who must also assume responsibility for its maintenance.

They are also obliged to compensate their neighbour for any damage that may be caused to plants etc during the construction process.

The wall can be increased in height to the full width of the existing wall or merely to a narrower width but, in all circumstances, it is important to ensure that the existing foundations can carry the additional weight, or reinforcement carried out.

If it is necessary to increase the width of the wall, beyond the existing width, then this increase must be carried out on the property of the owner constructing the boundary.

7. Relinquish Shared Ownership of Wall

Either owner of a common wall can give up rights of ownership, and with it the obligation to maintain it.

This right is possible on a unilateral basis, except where the wall supports an existing building.

If a neighbour gives up shared ownership then the remaining party becomes the sole owner. The formal process of property transfer would then need to proceed through a notaire in the normal way.

Nevertheless, it is not quite as final as it seems, for it is possible for someone giving up shared ownership to later commence a process to reclaim the right to shared ownership!

So if you are contemplating taking on full ownership you would be best advised to take legal advice to minimise this risk.

8. Hedges

The law recognises three rights for those neighbours with a common hedgerow.

First, the right to benefit from fruit and other produce from the hedge. Each neighbour has the right to half the produce, irrespective of whether or not it might fall on one side of the hedge! If the tree should die or be cut then each neighbour has the right to half of it.

Second, each neighbour has the right to require that shared trees are cut, although one of the neighbours cannot proceed unilaterally. Joint agreement seems implicit rather than explicitly stated in law.

Thirdly, in relation to the hedge itself, each neighbour can destroy up to the limit of the hedge on his or her own property. However, if they do this, they can be required to construct a wall or fence in lieu of the missing part of the hedge.