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Don't lose plot over boundaries

Working out where your property ends and your neighbour's begins is a difficult judgement

AN ENGLISHMAN’S home will always be his castle, even in France, but unless it comes with a moat around it, it may not be easy to define the limits of the property.

Michael and Charlotte Kemp from the Lot encountered this problem when they decided they wished to divide their land and sell off part of it as a building plot.

"We arranged for a géomètre [land surveyor] to divide up the land, which necessitated obtaining a definitive boundary line with our neighbour [called le bornage].

"However, our neighbour was unwilling to agree to the proposal drawn up by the géomètre, despite the fact that it followed an obvious existing physical boundary on the ground."

The case illustrates that without the cooperation of your neighbour, a legal definition of the boundary is difficult to obtain.
Planning and property lawyer Christine Paclot said: "It is necessary for both sides to sign that they agree to the boundary plan drawn up by the géomètre, in the absence of which the plan has no legal value."

A similar situation occurred with Robert Crater who bought a property in the Vienne, the boundaries of which had been drawn up 18 years previously between neighbours.

"However, I fell out with my neighbour about the boundary, as they refused to agree to it. They had not been the owners at the time the boundary had been defined, and as it was an agreement between the two previous owners, it was not binding on future owners."

Ms Paclot said: "You are free to agree the boundaries of the property with your neighbour but unless you use a géomètre, and then have the agreed boundary registered at the conservation des hypothèques [land registry], the agreement will not run with the land."

If a neighbour is unwilling to define the boundaries it is possible to apply to a tribunal d’instance [court] for it to be undertaken under their supervision, in a process called bornage judiciaire.

Once the limits of each property have been settled through bornage then no further redefinition of the boundary line can be undertaken. The new boundary line is indicated by a boundary marker placed in the ground by a géomètre.

Incidents of the boundary marker later being removed or destroyed are not uncommon, despite the fact that it is a criminal offence punishable by up to two years in prison and a fine of up to €30,000. Inevitably, however, the difficulty in such cases is finding proof of just who did it.

Like the Ordnance Survey maps from the UK, land boundaries on the official French territory maps called the cadastre are not definitive.

However, unlike the OS maps, there is often little topographical evidence to assist in the delineation of boundaries.

"The cadastre was created to assist in tax collection, not to define the precise boundaries of land," said Ms Paclot. "As a result, you cannot assume that the surface area of the land stated in the deeds - based on the cadastre - actually corresponds to what is on the ground."

In fact what topographical and other physical features do exist on the cadastre may no longer exist.

Inevitably in rural locations this sometimes makes the task of the géomètre a difficult one, for in the absence of clear and reliable features on the cadastre it becomes difficult to find a reference point from which to determine boundaries.

When the dispute may only involve a distance of less than a metre, that can be less than the width of the dividing line on the cadastre.

Not surprisingly, therefore, there is a large body of case law dealing with disputes between neighbours concerning their boundary.

Cutting down hedges, creating ditches, lopping boundary trees and putting up fencing can lead to tension with your neighbour.

Judges are very intolerant of transgressions of the boundary line, and where it occurs, almost without exception they order that the new feature is demolished or removed.

Even if the boundary can be determined there then often remain issues of ownership and responsibility.

Rarely in sale deeds is it made clear just who owns or is responsible for the maintenance of a fence or wall.

In practice, the responsibility is likely to be a shared one, but in the absence of clarity on the deeds, no-one can be sure.

If an impasse does arise, then the only means of resolving a dispute is to take the issue before the courts, in which a court-appointed géomètre will undertake the survey, and the decision of the court will then be final on the matter.

The decision of the court will also then be incorporated in the deeds of the relevant properties.

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