If you have read our pages on Land Registration in France you will know that the land register (cadastre) does not provide a definitive, legal basis for determining a boundary line between two properties.
The only way that a legally binding boundary line can be determined is through a land survey.
Bornage is a process that consists of determining, by the use of boundary markers, the boundary line.
One or more boundary markers, called bornes , are put in place, which define the limits of the properties.
A borne has historically been a stone or concrete marker placed on the ground, but nowadays it is a plastic marker embedded in the ground.
Bornes have a protected legal status and their destruction or unauthorised relocation is a criminal offence punishable by imprisonment and a heavy fine.
The process of bornage can be carried out either by agreement between two or more neighbours, or following intervention of a court of law.
Both approaches are described below.
Demarcation of land is only possible between private properties, whose boundaries must be contiguous and separate two or more owners.
Boundaries are considered to be contiguous even though they may be separated by a small stream, ditch, footpath or track.
However, demarcation is not possible if the land is separated by a river, a public highway or railway crossing as, in these circumstances, the land is not considered to be contiguous.
The presence of a hedge does not necessarily establish a boundary line and does not prevent demarcation being carried out.
Only public authorities can determine your boundary where it borders a public space. You will need to ask the mairie or the préfecture. If you are not happy with their decision you can appeal to a court of law.
Where your land borders private space owned by a public body then demarcation is possible. This is not unusual in the case of disused communal rights of way.
Where the land is in multiple ownership any of the owners can ask for demarcation, although the law provides safeguards for other owners.
Where two owners want to proceed with demarcation then nothing prevents them agreeing between themselves the limits of the boundary, preparing a plan, and marking it out or fencing it.
If this is done then, if you wish to bind future owners of the neighbouring property, it is imperative that the agreement is registered with a notaire otherwise it will not be binding on future owners.
This process is called de depot avec reconnaissance d’écritures et de signatures.
The agreement is registered with the public land registry – the la conservation des hypothéques – by the notaire.
It is always preferable to engage the services of a land surveyor, called a géometre, who will be able to undertake the process with precision and clarity. You will certainly need to do so if you are to get the new boundary registered with the land registry.
The géometre has a monopoly of this function in France and carries professional liability insurance.
S/he will examine historical documents as well as undertaking land measurement and any evidence produced by the owners.
When they have completed their work they will place a borne on the new boundary, provided of course the new boundary is agreed!
Both parties will then need to sign a plan agreeing to the changes, and this document is called a process-verbal (written report!).
The process-verbal is then registered at the land registry by a notaire.
The new boundary is mandatory on subsequent owners, provided it is registered.
The fees of géometre are freely negotiable and the amount will clearly depend on the size of the task.
As well as their fees there are those of notaire and land registration costs amounting to several hundred euros.
Quite often owners are reluctant to register these agreements with the notaire and if this occurs with you there is not much you can do about it.
This may occur, for instance, if the new boundary affects several different owners, all of whom it may be difficult to persuade to attend the notaires office, particularly if it is not in their interests to do so.
Nevertheless, provided they have signed as having agreed the new boundary, it can be applied.
In the event of a dispute over the boundary with your neighbour, and you cannot agree on the appointment or decision of géometre, then the matter can be decided by a court of law under a process called bornage judiciaire.
In effect, you can oblige your neighbour to have the boundary determined by the court.
Provided it concerns purely the boundary then the dispute can be heard before a tribunal d’instance, where the use of an avocat is not obligatory.
If it is more complicated then it would need to be heard by the tribunal de grand instance when the use of an avocat is required.
If you are not using an avocat, then you would be best advised to seek the assistance of a local huissier, a quasi public official best described as a bailiff. The huissier will undertake the formal process of seeking a court hearing and serving notice on your neighbour.
In the absence of agreement between the parties the judge is able to determine the boundary, and can impose a boundary on a reluctant party.
More often than not a judge will do so by appointing a géometre to act on behalf of the court.
It is often the case that intervention of court appointed géometre can bring about agreement, in the absence of which the judge decides. In such circumstances new boundary markers are installed by order of the court.
Once again the new boundary needs to be registered with the land registry for it to be applicable to subsequent owners.
A right of appeal lasts for 30 days, failing which the decision is final and irrevocable.
Index - Property Rights in France