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Roof Terrace Constitutes a Neighbour Nuisance

Thursday 03 June 2021

A couple who created a terrace on the roof of their French apartment are ordered to close it.

In a case heard in the court of appeal sitting in Rennes, the couple lived on the top floor of a three-storey apartment block in the town of Dinard. In proximity, there was another apartment block as well as commercial premises.

The court heard that the couple created a Velux window opening from their top-floor flat onto the roof, on which they installed a wooden floor, canopy and iron railing. The roof was one of the common parts of the block.

The terrace had a direct, overlooking view of an existing large terrace below.

The apartment block has the status of the condominium and Article 9 of the Loi 65-557 10 July 1965, on the status of co-ownership properties stipulates: "Each co-owner has the private areas included in his lot; they can freely use and enjoy private and common area, on the condition that they do not infringe the rights of the other co-owners or the status of the building."

The work on the roof had been carried out without the consent of the other apartment block owners who demanded that the use of the terrace cease. The works had also been carried out without planning consent, although the court did not hear of enforcement action taken by the local council or prefecture.

The couple, who regularly let out their apartment as a holiday let, disputed the roof area was being used as a terrace, but photographic evidence produced in court showed people sunbathing on it.

The court concluded that, whilst there are already overlooking views from the windows of the apartment to the terrace below, the views from the top terrace were direct, wider and more troublesome.

There was also a disturbance from people accessing the terrace and moving around on it, only a few meters from the occupants of the large terrace below.

Although there were other buildings in proximity, from the windows of which there were direct views of the large terrace, the judges considered that did not lose the unusually troublesome character of the roof terrace, from which the view of the lower terrace was closer and direct than from the windows of neighbouring buildings.

Section 544 of the French Civil Code grants an absolute right to enjoy and dispose of property as one wishes, provided it is not used in a manner that is prohibited by law. This right is limited by the owner's obligation not to cause any harm to their neighbours beyond the normal inconveniences of the neighbourhood.

The court, therefore, ruled that the terrace constituted a neighbour nuisance and ordered it be closed, with damages.

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