Rosaline and Robert, co-owners of a country house, want to bring an action in boundary dispute against their neighbor Mr. Philou, who refuses to participate.
Extract
[...] The question is, on the one hand, who can bring the boundary action and on the other hand, to determine the chances of success of such an action On the boundary action Co-ownership is the situation in which two or more people simultaneously have rights, in whole or in part, of the same nature (Articles 815 and following of the Civil Code). In this case, Rosaline and Robert inherited the said house following the death of their mother. Therefore, they are both co-owners of the house, and they want to bring an action in boundary dispute. The action in boundary dispute is an action that requires the consent of the co-owners to the tune of at least two-thirds of the undivided rights (Article 815-3 of the Civil Code; Cass. civ. [...]
[...] In this case, Rosaline and Robert are co-owners of the house and wish to bring a lawsuit. The indivision having no legal personality, it does not have the capacity to sue in court. In order for their action to be admissible, Rosaline and Robert must act in their own name Thus, Rosaline and Robert can bring the action of boundary of properties, but in their own name and not in the name of the indivision. On the chances of success of the action in boundary The action in boundary has for object to delimit two contiguous properties. [...]
[...] In this case, Rosaline and Robert are co-owners to the tune of 50% of the indivisible rights each, and both are in agreement to bring an action for boundary marking. However, an indivision is devoid of legal personality (Cass. civ. 2and June 2011, n°10-19.241), so that a lawsuit can be validly introduced in the name of the indivision (Cass. civ. 3and April 2001, n°99-14.368), if it is made in the name of the indivision and the deed does not mention the name of all the co-owners (Cass. civ. 3and June 2002, n°00-21.869). [...]
[...] It is the same when a cliff not only draws a natural limit between the two funds, but also an impassable limit without appropriate technical means (Cass. civ. 3e December 2018, n°17-31.270). In this case, Mr. Philo argues that the cliff between the two plots of land serves to demarcate the two properties. Therefore, according to the case law of the Court of Cassation, the cliff constitutes a natural and impassable boundary, thus allowing the adjacent plots to be delimited. Thus, Rosaline and Robert's boundary dispute will have little chance of prospering. [...]
