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Abstract

The encroachment appears as an autonomous notion today. Indeed, it is about a very specific situation of conflict for which the case law gradually fixed original solutions which put in check rules allowing generally to resolve the disputes relative to the property (the entry, the abuse of process, the servitude and the common ownership). So, it’s time to introduce the concept of encroachment into the civil code as proposes it the draft of reform of the properties laws, presented by the association Henri Capitant, and which dedicates it two measures, one of the general reach, the other one aiming at the particular case of the wall built on both sides of the séparative line of two adjoining properties. The object of the present article is to contribute to loosen(to kick away) a legal regime of the encroachment, guaranteeing the balance between the opposing(conflicting) interests of the nearby owners. This regime can be looked for around two axes : the first one consists in envisaging the circumstances of the encroachment, so as to operate a modulation when the encroachment seems small and involuntary ; the second concerns the penalty of the encroachment : on one hand, to prevent(warn) any abuse on behalf of the owner victim of the encroachment, it seems convenient that this one does not keep(guard) systematically the control(master’s degree) of the penalty ; on the other hand, in the hypothesis of a wall built in “horseshoe”, the equity commands(orders) that the same owner can benefit from a direct acquisition and without counterpart of the common ownership.