Common courtyard easement (Art. L. 471-1 Town Planning Code): buying the neighbour's building rights before applying for a permit

An investor acquires a plot in a central Paris arrondissement on the basis of a feasibility study showing several thousand square metres of floor area. The building envelope in the regulations allows it, and so does the maximum height. Then the architect goes back over the dimensions: the distance required from the boundary, and the rules on facing buildings in relation to the gable wall of the adjoining building, cut the buildable depth most brutally. The potential exists on paper in the regulations, but not geometrically. This is precisely the situation that the common courtyard easement (servitude de cour commune) of Article L. 471-1 of the French Town Planning Code makes it possible to address, by buying from the neighbour the undertaking not to build, or not to build above a certain height, on the strip of land that is missing. This article treats the mechanism from the standpoint of structuring a transaction: how to negotiate, price, draft and register a common courtyard easement before the permit is filed, and how to detect, in due diligence, one that already encumbers the plot being pursued and caps a buildable potential that the buyer believes it is buying.

What Article L. 471-1 of the French Town Planning Code really allows

The mechanism is inherited from the decree-law of 26 March 1852 on the streets of Paris, now codified in Articles L. 471-1 et seq. of the French Town Planning Code. Its operation is simple. Where the planning rules require a distance between two buildings, or between a building and a boundary, the owners concerned may agree by notarial deed that one of the plots will remain unbuilt, or will be built on only to a limited extent, so that the regulatory distance is respected by considering the two plots together. The open space is deemed common to both plots for the application of the setback rules (règles de prospect). Hence the name common courtyard, which designates less a physical courtyard than an area of non-buildability allocated to a regulatory calculation.

The scope of the mechanism must be defined rigorously, because this is where most feasibility studies go astray. The common courtyard acts on the rules on distance, siting and views. It does not act on the other density parameters. It does not raise the maximum height, does not change the permitted ground coverage, does not remove the requirement for deep soil (pleine terre) or planted open spaces, does not move a buildable strip and creates no additional right to build in itself. It frees a siting. It is the freed siting that, in a second step, makes it possible to use a building envelope that was previously unattainable.

Three neighbouring regimes are regularly confused, and the confusion is costly. The common courtyard easement is a private-law instrument with a town planning effect: it is enforceable against the administration and serves for the regulatory calculation. The civil easement of non aedificandi or non altius tollendi, based on Article 686 of the French Civil Code, binds the owner of the burdened plot towards the benefited plot, but says nothing to the planning authority. The easements of view in Articles 678 and 679 of the French Civil Code, which prohibit direct views at less than nineteen decimetres and oblique views at less than six decimetres, for their part continue in full: a properly registered common courtyard does not cure the law on views. In practice, the deed must therefore combine the three dimensions, namely the common courtyard within the meaning of Article L. 471-1, the neighbour's civil waiver of reliance on Articles 678 and 679, and where appropriate authorisation for openings and light apertures (jours). The statutory distances applicable to views and the remedies available against the neighbour are detailed in our article on the easement of view.

Alongside the contractual route, the code provides for a route of non-amicable establishment of the easement. Its use is marginal and its conditions narrow. In structuring a transaction, the reasoning must start from the opposite premise: the common courtyard is bought, it cannot be imposed. The neighbour is in a position of rent, and the negotiation is the essence of the file.

Identifying the opportunity: when setback, not the envelope, constrains the transaction

The Paris context is the natural terrain for the mechanism. The plot pattern is narrow and irregular, the interiors of blocks are constrained, older buildings have blind gables and narrow courtyards, and the successive regulations, up to the bioclimatic local town plan (PLU) adopted by the Paris Council at the end of 2024, have layered building envelope, maximum height, view distances and deep-soil requirements one on top of another. The result is known to operators: on a significant number of central plots, the determining constraint is not the density permitted but the geometry of the siting.

Four configurations justify examining a common courtyard even before signing the acquisition agreement.

• The raising of an existing building blocked by the facing building opposite or by a building at the back of a courtyard.
• Construction in the interior of a block, on a narrow strip plot, where the setback required from the side boundaries makes the built depth unusable.
• The heavy restructuring of an office building into housing, where the creation of main rooms requires regulatory views that the existing state does not satisfy.
• The division of a single plot of land (unité foncière) or the division of a property complex into volumes, which creates new boundaries where the regulations previously applied only the rules on distance between buildings on the same property. Article R. 151-21 of the French Town Planning Code allows the regulations to provide for the rules to be applied at the scale of the overall project, but absent such a provision, the division mechanically creates new setbacks. The common courtyard between the lots or volumes resulting from the division then restores the previous situation.

This last situation is the most under-exploited. It makes Article L. 471-1 a tool for the internal structuring of a transaction, and not only a tool for negotiation with a third party.

Negotiating and pricing the purchase of the neighbour's non-buildability

What is sold, and how it is valued

The neighbouring owner is not selling land. It is giving up a fraction of its own buildable potential, permanently and most often in perpetuity. The indemnity must therefore be built on two values, which never coincide.

The first is the loss suffered by the burdened plot: floor area that the neighbour will no longer be able to build on the burdened area, valued at the land cost of the sector, to which is added the residual depreciation of its asset, including where it has no project. A height cap or a prohibition on building on a strip of courtyard weighs on market value, on the owner's borrowing capacity and, for a taxpayer concerned, on the base declared for real estate wealth tax (impôt sur la fortune immobilière).

The second is the gain obtained by the benefited plot: the floor area that the easement makes achievable, valued by a developer's residual land value calculation (compte à rebours promoteur). It is this value, and not the first, that sets the economic ceiling of the negotiation. The gap between the two is the bargaining zone. It is all the wider the more sensitive the transaction is to setback, and all the narrower the more the neighbour has identified what is at stake. A piece of advice: never file a building permit application, even on an exploratory basis, before opening the discussion. Filing reveals the need and raises the indemnity.

The tax characterisation of the indemnity must be decided before signing, not after. The creation for consideration of an easement by an individual is treated as the transfer of a right relating to real property, falling under the real estate capital gains regime of Article 150 U of the French General Tax Code, with the classic difficulty of determining the acquisition price of the right transferred. For a transferor subject to corporate income tax, the indemnity is income for the financial year. The treatment for VAT and registration duties is determined case by case. The net amount after tax conditions the neighbour's acceptance: a negotiation conducted on a gross basis fails at the last moment.

The neighbouring plot in co-ownership: the decision-making lock

In Paris, the useful plot almost always belongs to a co-ownership association (syndicat des copropriétaires). The counterparty is then neither the property manager (syndic) nor a neighbouring co-owner, but the general meeting. The creation of an easement over the common parts is an act of disposal, which falls under the double majority of Article 26 of Law No. 65-557 of 10 July 1965, that is, a majority of the members of the association representing at least two thirds of the votes. Unanimity becomes necessary where the transaction affects the intended use of the building or the terms of enjoyment of the private parts, which deserves serious examination where the common courtyard involves blocking up views, removing an access or privatising an area.

The timetable must take account of three constraints specific to co-ownership. The resolution must be drafted in advance by the operator's counsel and sent to the property manager for inclusion on the agenda, with the draft deed annexed: a resolution that is imprecise as to the area or the use of the indemnity is unworkable. The express authorisation of the property manager to sign the notarial deed must appear in the same resolution. Finally, the decision may be challenged by opposing or absent co-owners within two months of notification of the minutes, in accordance with Article 42 of the 1965 Law. Incurring transaction expenses before that period expires is a gamble.

The allocation of the indemnity is a negotiating point in its own right. Paid to the association, it is in principle allocated according to the shares of common parts. Its use for a works programme, typically energy capex or a facade renovation, appreciably increases the likelihood of obtaining the majority. Where the neighbouring plot belongs to a public body, the transaction remains possible on public property under the conditions of Article L. 2122-4 of the French General Code of Public Property, subject to compatibility with its designated use, but the internal processing time changes in scale.

Drafting the deed: area, reciprocity, conditions, registration

The deed must be notarial. Article 710-1 of the French Civil Code reserves the notarial form for any instrument intended for land publicity, and registration at the land registry (service de la publicité foncière), under the conditions of Decree No. 55-22 of 4 January 1955, conditions the enforceability of the easement against the successors in title of the two owners. A private agreement between neighbours has no value in a building permit file.

The drafting points that make the difference at the processing stage and in litigation are as follows.

• The area must be defined in three dimensions, by an annexed dimensioned plan and by altimetric levels tied to a reference system, and not by a descriptive text. A common courtyard limited to a prohibition on building at ground level does not prevent a future raising by the neighbour.
• The nature of the undertaking must be characterised: absolute prohibition on building, or height limitation, or prohibition on creating views. The three do not produce the same effect on the setback calculation.
• Whether the easement is reciprocal or unilateral must be decided. Reciprocity is frequent where both plots have potential, but it reduces the indemnity accordingly and may sterilise the beneficiary's plot for a later transaction.
• A stipulation that the burdened plot may not rely on the common space for its own buildability avoids double use of the same area.
• The neighbour's waiver of the right to challenge the building permit to be issued, where it is provided for, must be handled with caution. Agreements for the abandonment of a challenge against a planning authorisation are subject to the registration requirement of Article L. 600-8 of the French Town Planning Code, failing which the validity of the transaction is affected. The consideration must remain proportionate to the loss, failing which the operator is exposed to litigation of an entirely different order.
• The conditions precedent and conditions subsequent (résolutoires) must be coordinated with the transaction timetable, as must the escrow of the price in the notary's hands.

This last point is the most structuring. The beneficiary does not want to pay for an easement without a final permit. The burdened owner does not want to encumber its plot without being paid. The usual construction is to sign the constitutive deed, register it, deposit the indemnity in escrow, and make the easement subject to a condition subsequent linked to failure to obtain a building permit that has become final within an agreed period, with an undertaking to register the mention of termination and cancellation. The release of the funds follows the clearing of challenges.

Sequencing the transaction: the easement must precede the filing of the permit

The chronology is not a matter of convenience. The planning authority assesses the conformity of the project with the setback rules in light of the legal situation existing on the date of its decision. A common courtyard that is announced, promised or under negotiation does not enter into the calculation. The registered agreement is produced in support of the application, and it is what justifies the reduction of the distance required.

A permit issued on the strength of an easement that does not exist or has not been registered is unlawful. Two risks follow. The competent authority may withdraw it within three months of the decision, pursuant to Article L. 424-5 of the French Town Planning Code. A third party may challenge it within two months running from the first day of display on the land, under Article R. 600-2, being required to notify its application within fifteen days as required by Article R. 600-1. The mechanism for crystallising grounds in Article R. 600-5 and the ten-month judgment period applicable to challenges against permits for multi-unit housing, provided for by Article R. 600-6, limit the procedural risk, but do not compensate for a defect of substance.

The decision timetable of a transaction using a common courtyard is therefore ordered as follows: feasibility study identifying the setback constraint, identification of the useful plot or plots and their ownership structure, approach to the neighbour and conditional memorandum of agreement, general meeting resolution where applicable and expiry of the challenge period, notarial deed and registration, filing of the permit application with the agreement, processing, clearing of challenges, then completion of the acquisition of the land. The acquisition of the land itself must be made subject to a condition precedent of obtaining the easement, and not the reverse. Buying the plot first, negotiating the common courtyard afterwards, amounts to revealing one's dependence on the seller of the right that one will have to acquire. The coordination of conditions precedent with obtaining a permit cleared of challenges is analysed in our article on securing a land acquisition subject to a building permit condition.

The symmetrical risk: buying a plot already encumbered by a common courtyard

The mechanism works the other way round. A Paris plot may be encumbered by a common courtyard granted several decades ago, during a post-war reconstruction operation, a development zone (ZAC) or a neighbouring permit from the 1970s. The undertaking is perpetual, enforceable against successive buyers, and it caps the plot's buildable potential without any planning document mentioning it.

Why standard due diligence does not detect it

The common courtyard easement is a private-law easement. It is not a public utility easement annexed to the PLU. It does not appear on the plan of public utility easements, and a planning certificate issued under Article L. 410-1 of the French Town Planning Code will not reveal it. It is also physically invisible: a courtyard that appears free does not say whether it is free in fact or free in law, or for whose benefit. On the exact scope of that document, see our analysis of what the operational planning certificate really crystallises before the offer.

Detection therefore requires land due diligence and not only planning due diligence: a request for a mortgage search on formality and off formality (état hypothécaire sur formalité et hors formalité), examination of the chain of title over a period long enough to go back to the constitutive deed, reading of earlier deeds and their graphic annexes, and, where there are indications, consultation of the archives of permits issued on adjoining plots. A blind gable on the boundary, an interior courtyard abnormally generous given the density of the sector, a neighbouring building whose envelope is lower than the regulations allow, are all signals justifying further investigation. The gap between the theoretical potential in the regulations and the existing built form always deserves a legal explanation.

The buyer's contractual and litigation levers

Where the easement is discovered before signing, the treatment is contractual: a price reduction, an adjustment clause indexed to the floor area actually authorised by the permit obtained, or a condition precedent of obtaining a release (mainlevée) from the benefited plot. Buying out an old common courtyard is legally possible, by published notarial deed, provided that the current benefited plot or plots are precisely identified, which proves laborious where the original plot has been divided or placed in co-ownership: the agreement of all the beneficiaries then becomes necessary.

Where the discovery is after the sale, the ground shifts to the seller's warranty. Article 1638 of the French Civil Code gives the buyer, where the property sold is found to be burdened by undeclared non-apparent easements, of such importance that it is to be presumed that the buyer would not have bought had it been informed, an option between termination of the contract and compensation. Breach of the pre-contractual duty of information of Article 1112-1 of the French Civil Code and, where concealment is established, fraud (dol) under Article 1137 may be invoked in parallel.

Two reservations must however be set out clearly, as they are decisive in assessing a case. First, an easement that has been properly registered is enforceable against the buyer, and land publicity weakens the argument based on the hidden nature of the burden: a professional buyer, assisted by a notary and counsel, will have its own failure to examine the land register held against it. Second, sale deeds almost systematically contain a clause excluding warranty for easements, the effectiveness of which, although not absolute against a seller acting in bad faith or a professional seller, is often enough to turn a claim into long and uncertain litigation. The operational conclusion is unambiguous: on this risk, prevention is infinitely better than action.

The lender's and registered creditor's point of view

A common courtyard granted after a mortgage registration reduces the collateral of the security without the creditor having consented. Structured transaction financings should treat the creation of easements over the charged asset as a negative covenant, subject to the lender's prior consent. Symmetrically, a lender financing the acquisition of land valued on buildable potential must require, as part of its conditions of drawdown, production of the complete mortgage search and, where the structure assumes it, the published copy of the common courtyard on which feasibility depends. Failure to make this check turns a security over building land into a security over sterilised land.

What to decide before filing

The common courtyard easement is not a technical adjustment entrusted to the architect at the end of the feasibility study. It is an acquisition item in its own right, negotiated with the neighbour in the same way as the land is negotiated with the seller, and to be treated with the same level of contractual rigour. Three decisions determine the success of the structure. First, the order of operations: the registered easement precedes the filing of the building permit, and the acquisition of the land remains conditional on obtaining it. Second, the area: defined in three dimensions, accompanied by a civil waiver of the easements of view, and locked against any double use. Finally, the exit: a condition subsequent if the permit does not become final, escrow of the indemnity, and tax treatment settled before signing.

On the acquisition side, the message is clearer still. The buildable potential of a Paris plot is not read in the PLU regulations, it is read in the land register. Before signing a preliminary agreement on land valued on an assumption as to the envelope, have a mortgage search on formality carried out and the chain of title traced back to the deed that may have created a common courtyard in favour of a neighbour. The cost of this check is negligible compared with the discount that will be suffered by an asset whose buildability turns out to be capped by an undertaking given fifty years ago.

Frequently asked questions

Must the common courtyard easement be registered before the building permit is filed? Yes. The planning authority assesses the conformity of the project with the setback rules in light of the existing legal situation. An agreement not registered at the land registry is not enforceable and cannot justify reducing the regulatory distance. The deed must be notarial, in accordance with Article 710-1 of the French Civil Code, and registered under the conditions of Decree No. 55-22 of 4 January 1955. A permit issued on the strength of an easement that does not exist is liable to withdrawal within the three-month period of Article L. 424-5 of the French Town Planning Code and to annulment on a third party's application.

Does a common courtyard easement create additional floor area? No, not directly. Article L. 471-1 of the French Town Planning Code acts on the distances required between buildings and on siting. It raises neither the maximum height, nor the ground coverage, nor the deep-soil or open-space requirements. The additional floor area results from the freed siting, which makes it possible to use a building envelope that was previously inaccessible. Any feasibility study that presents the common courtyard as a general derogation from the density rules must be redone.

What majority is required in a co-ownership to grant a common courtyard over the common parts? The creation of an easement over the common parts is an act of disposal falling under the double majority of Article 26 of Law No. 65-557 of 10 July 1965, that is, a majority of the members of the association representing at least two thirds of the votes. Unanimity may be required if the transaction affects the intended use of the building or the terms of enjoyment of the private parts. The resolution must expressly authorise the property manager to sign the notarial deed and refer to the annexed draft. The two-month challenge period of Article 42 of the same law must have expired before any expenditure is committed.

How can a common courtyard easement be detected before buying a plot? By land due diligence, not planning due diligence. The common courtyard is a private-law easement: it is not annexed to the PLU as a public utility easement and a planning certificate does not reveal it. A mortgage search on formality and off formality must be requested, the chain of title traced back and the graphic annexes of earlier deeds read. A neighbouring envelope that is abnormally low, a blind gable on the boundary or a courtyard that is too generous given the density of the sector are warning signals.

Is the indemnity paid to the neighbour taxable in its hands? The creation for consideration of an easement by an individual is treated as the transfer of a right relating to real property and falls under the real estate capital gains regime of Article 150 U of the French General Tax Code, with the difficulty of determining the acquisition price of the right transferred. For a transferor subject to corporate income tax, the indemnity is taxable income for the financial year. The treatment for VAT and registration duties depends on the status of the parties and on the transaction. The decision must be made before signing, because the neighbour negotiates on a net basis.

Can an old common courtyard that constrains a project be bought out or removed? Yes, by a published notarial deed of release (mainlevée), but the transaction requires identifying all the current owners of the benefited plot. The exercise becomes heavy where that plot has been divided or placed in co-ownership since the creation, since the agreement of all the beneficiaries is then required, with, where applicable, a general meeting vote. The buy-out cost is negotiated on the same logic as the creation, namely the value of the buildability restored to the freed plot.

Does the common courtyard exempt from compliance with the easements of view in the Civil Code? No. Articles 678 and 679 of the French Civil Code, which prohibit direct views at less than nineteen decimetres and oblique views at less than six decimetres, continue to apply independently of town planning law. A permit that is regular in terms of setback remains open to challenge by the neighbour on the basis of the law on views. The deed must therefore contain, in addition to the common courtyard, an express waiver by the burdened owner of reliance on those provisions and, where applicable, authorisation for the openings planned.