Liability for abnormal neighborhood disturbances : from jurisprudential creation to law

21 May 2024

Pursuant to Articles 1382, 544 and 651 of the Civil Code governing fault-based liability and the rights and obligations of property owners, case law has established the principle that no person may cause a disturbance to another which exceeds the normal inconveniences of neighbourliness (Civ., 27 Nov. 1844), based on the idea that inconveniences associated with neighbourliness must be borne only up to a certain limit, to the extent of those inherent in life in society. On the basis of this principle, case law has developed an original autonomous liability regime in which liability is not assessed on the basis of the seriousness of an act – fault is not required – but on the basis of the abnormality of the disturbance caused (noise, smell, sight, pollution, etc.). This jurisprudential creation has now been codified by Law no. 2024-346 of 15 April 2024, in the new article 1253 of the Civil Code, which states that
« the owner, tenant, unauthorised occupant, beneficiary of a title whose main purpose is to authorise him to occupy or use land, the project manager or the person exercising the powers of the latter who causes a disturbance that exceeds the normal inconveniences of the neighbourhood is automatically liable for the resulting damage ».

Taking up and extending the text of article L.113-8 of the Code de la Construction et de l’habitation (CCH), repealed at the same time, the new article 1253 of the Civil Code provides that liability is not incurred «when the abnormal disturbance arises from activities, whatever their nature, existing prior to the deed transferring ownership or granting enjoyment of the property or, in the absence of a deed, on the date of entry into possession of the property by the injured party. These activities must comply with the laws and regulations and have continued under the same conditions or under new conditions that do not aggravate the abnormal disturbance».
A reading of the new text shows that :

  • The risk of damage is not mentioned as something that can be repaired, whereas this was accepted in case law,
  • The prior existence of the activity that is an obstacle to compensation for abnormal neighbourhood disturbance, already provided for previously, is taken up again but now covers all activities, whatever their nature,
  • The criteria for assessing whether an activity has been going on for a long time have changed slightly: it is now assessed with regard to the date of the deed transferring ownership or granting enjoyment of the property, or in the absence of a deed, the date on which the victim took possession of the property;
  • Echoing article 2278 of the Civil Code, which protects possession against any disturbance that affects or threatens it, the legislator has also extended the benefit of the action for abnormal neighbourhood disturbance to the date of the transfer of ownership or the granting of enjoyment of the property.

By enshrining long-established legal principles in law, the legislator’s aim is to secure the exercise of certain agricultural, industrial and commercial activities, while respecting everyone’s right to the peaceful enjoyment of their property.