Smells, smoke and encroaching vegetation: what are your rights?

Smells and smoke: a case-by-case assessment

Smells (repeated barbecues, livestock, waste storage, a restaurant) and smoke (garden fires, chimneys, craft activities) may amount to abnormal neighbourhood nuisance where they exceed ordinary inconveniences. The court assesses in concreto the frequency, the intensity and the persistence of the nuisance, as well as the context: a farm or a shop does not have the same impact in a rural area and in a residential estate.

Moreover, the open-air burning of green waste by private individuals is in principle prohibited on the basis of Article 84 of the model departmental health regulations (règlement sanitaire départemental type), whose scope was recalled by the circular of 18 November 2011. The prefect may grant exemptions in the cases and under the procedure laid down by those regulations, whose exact provisions vary from one département to another: the locally applicable regulations should therefore be checked. Smoke resulting from a practice that does not comply with the regulations also deprives its author of the benefit of the pre-existence exception, since that exception assumes activities complying with laws and regulations (Article 1253, second paragraph, of the French Civil Code).

Vegetation: planting distances and pruning

Vegetation is subject to precise rules of the French Civil Code. Failing particular regulations or constant and recognised local custom, plantings whose height exceeds two metres must keep a distance of at least two metres from the boundary line, and other plantings a distance of half a metre (Article 671 of the French Civil Code). The distance is measured from the boundary line to the middle of the trunk.

The neighbour may require plantings placed at a lesser distance to be uprooted or cut back to the lawful height (Article 672 of the French Civil Code). That right is nevertheless subject to three express limits: an existing title, the destination du père de famille (an arrangement made by a former common owner), and thirty-year prescription. The last is decisive in practice: after thirty years, a non-compliant planting can no longer be uprooted or cut back. According to case law, the starting point of that period is not the date of planting but the date on which the tree exceeded the maximum permitted height.

Where branches overhang their land, the neighbour may compel the tree's owner to cut them: this right to require pruning cannot be lost by prescription. The neighbour may themselves cut the roots, brambles and twigs that encroach on their land, at the boundary line (Article 673 of the French Civil Code).

Pre-existence: the theory of prior occupation

Someone who moves in near a pre-existing disturbing activity has limited rights. This pre-existence exception (antériorité), close to the theory of prior occupation, is now codified in the second paragraph of Article 1253 of the French Civil Code: liability is not incurred where the nuisance comes from activities, whatever their nature, existing before the deed transferring ownership or enjoyment of the property to the injured person, or, failing a deed, before that person took possession. Those activities must, however, comply with laws and regulations and continue under the same conditions, or under new conditions that do not cause the nuisance to worsen.

This rule comes from the Act of 15 April 2024, which repealed the former Article L. 113-8 of the French Construction and Housing Code. The latter reserved the protection to certain exhaustively listed activities (agricultural, industrial, craft, commercial, tourist, cultural or aeronautical); Article 1253 now extends it to any activity. Pre-existence does not, however, protect an activity that has worsened or that breaches the applicable rules, and pre-existing farming activities fall under a regime of their own (Article L. 311-1-1 of the French Rural and Maritime Fishing Code).