Question 7521 — nuisance

Summary

The condition of prior existence of a noisy activity was taken into account by the legislator through article L. 112-16 of the construction and housing code. The latter, judged to be consistent with the Constitution by a decision of the Constitutional Council of April 8, 2011 (Cons. Const., April 8, 2011, No. 2011-116 QPC) provides that “damage caused to the occupants of a building by nuisances due to agricultural, industrial, artisanal, commercial or aeronautical, do not entail the right to compensation when the building permit relating to the building exposed to these nuisances has been requested or the authentic act recording the alienation or the taking of a lease established subsequent to the existence of the activities giving rise to them, provided that these activities are carried out in accordance with the legislative or regulatory provisions in force and that they are continued under the same conditions. This article does not apply to damage resulting from the exercise of an activity in a co-ownership (C.A. Paris, March 19, 2009, Syndicat des copropriétaires 18, rue de la Bûcherie and 19, quai Montbello, JurisData n° 376261). This right recognized to the first occupant is, however, not absolute. In fact, three cumulative conditions must be met for the author of the disorder to be able to usefully invoke the aforementioned article L. 112-16. 1) The three periods which make it possible to determine the reality of the anteriority are: when the plaintiff had his home built, the date of submission of his building permit application. The fact that the administrative jurisdiction has not previously established the legality or illegality of the building permit is not without influence on the admissibility of an action based on disturbances of neighborhood (C.A. Metz, November 18, 2014 SARL Jacob Matériaux, Juris-Data n° 028441); 2) Article L. 112-16 also specifies conditions on the activity generating noise pollution, which must be in compliance with the legislative provisions or regulations in force. 3) Finally, the activity must have continued under the same conditions (same number of machines or animals, same attendance at the place, etc.). In the event of a change in the operating conditions, the judges must therefore verify precisely what the problems were before the extension of the operation and what they became after this change in the operating conditions.

Machine translation from French. The official text remains authoritative.

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