Easements: Neighborhood and right of way
Town planning, public utility, neighborhood easements, right of way ... Easement is a constraint which is asserted on the owner of a property (servient land), for the benefit of the owner of another property (dominant land).
Easements and law sources
Easements retrieve their source mainly in the Civil Code: articles 637 to 710 entitled "Easements or land services" but also in special texts, namely: the Town Planning Code, the Rural Code, the Forestry Code ...
- Town planning easements are administrative limitations to the right to property and resume their foundation in the Town Planning Code Articles L 112-1 to 17 and their regulatory section. They can be instituted through a perimeter of protection of goods and people "beyond the areas covered by a local urban plan or an town planning document in lieu of. »
- Public utility easements (PUE) do not resume their foundation in the Town Planning Code, but are established through specific laws or regulations, which are of general interest. The Town Planning Code quotes them to specify their existence in the local town planning plans (Article 1151-43) and the municipal map (Article L161-1) when they are likely to make an impact on the occupation of ground. These public easements appear on a list drawn out by decree in the Council of State.
Note: In April 2016, the National Urban Planning Portal, known as the "Urban Planning Geoportal" (UPG), was created to include all urban planning documents in 2020. These documents are added to the Geoportal gradually, by the competent authorities (local authorities, State, PUE manager). If the town planning document has not been filed yet on this site, it can be viewed on the town hall or inter-municipal website.
- Article Easements L152-1 till 23 of the Code rural are inserted in the title “Development equipment and works”.
- The road easements and clearing obligations common to territories, woods and forests exposed to fire risks are included in the article L134-1 till 18 of the Forest Code.
Active and passive easement
The easement is said to be active for the owner of the beneficiary land and passive for the owner of the land who shall support it. Exception to the concept of dominant fund and servient fund. In terms of public utility easement, the notion of dominant land and servient land does not exist, since this only affects a building which is of public interest in accordance of a legal text without worrying about the utility or the advantage of another fund.
Examples: towing and stepping stone easements along state waterways, pedestrian access easements along the coast, right of way for ski slopes or those relating to ski lifts, and especially those through which distribution services benefit: water, gas, electricity and telecommunications...
Buildings that may be subject to an easement
Article 637 of the Civil Code defines easement as "a charge imposed on an inheritance ". The term inheritance in old law designates any private real estate property. An easement, within the meaning of article 637 of the Civil Code can therefore be established on a built or non-built building, which is subject to private property, but also on buildings depending on the private domain of the State or local communities.
Note: since July 1, 2006, article 2122-4 of the General Code of Property of Public Persons allows owners to establish easements through agreement in keeping with article 639 of the Civil Code on property in the public domain. The existence of these easements must be compatible with the use of the property on which the latter are exercised.
Perpetual, temporary, or conventional easements?
It is said that an easement presents a real character because it is attached to the property of which it constitutes the accessory and which in turn, all the successive owners shall benefit from it or be subject to the latter. It follows the funds, regardless where it belongs.
As a consequence, an easement is theoretically perpetual, but jurisprudence admits that one can make up temporary easements.
If the property is sold, it will be sold through the easement. Therefore, it is required that the purchaser is informed by the seller and that the sale’s agreement mentions the easements, mainly conventional ones, but also the inapparent easements, which the owner is not aware of.
The obligation to declare in the event of the sale of an encumbered property with an easement: article 1638 of the Civil Code makes it all the more compulsory for the seller, the declaration of inapparent or hidden easements in the sales agreement, these easements are of great importance and if the purchaser had known these, he wouldn’t have bought the property.
In the event of a non-compliance with this obligation, the purchaser may request either the termination of the contract or damages. The jurisprudence has extended the seller's obligation to inapparent easements of legal or administrative origin, such as town planning easements.
Different forms of easements
Article 688 of the Civil Code distinguishes between continuous and discontinuous easements:
- Continuous easements are those whose use is or can be continuous without the need for human intervention. (Examples: a water pipe, a sewer, a view …)
- Discontinuous easements are those which require human intervention. (Examples: right of the way, the right of drawing water, ranching …)
Article 689 of the Civil Code distinguishes between apparent and inapparent easements:
- Apparent easements are visible due to the presence of an external structure. (Example: an exposed water pipe …)
- Non-apparent or occult easements are those that have no outward signs of their existence and those which are invisible. (Example: the ban on a building …)
How to establish an easement?
The easement constitutes a real property right accessory to the right of ownership : it is attached to the property and not to the owner. It is required, in the event of a sale that the purchaser is informed of the easements which exist and concern the property but even more if it is a passive easement that depreciates the property’s value (Articles 690 to 696 of the Civil Code).
It is highly recommended not to constitute an easement through act, under private signatures. It is true that nothing can guarantee that the latter shall be known to successive owners. The drafting your notary as part of a notarial act and its mention to the Land Registry Service shall ensure its transmission and knowledge with certainty during all genuine estate transfers. The notary in charge of the sale will then be able to verify the conventional easements listed in the previous titles. With regard to town planning easements, the latter will review the town planning documents applicable to the property, mainly through the national portal "Geoportal for town planning".
Easements are established through 3 ways:
1. By title, which means by amicable agreement between neighbors. The scope and methods of exercising conventional easements are definitively fixed by the title which establishes these and can only be modified through mutual agreement between the owners of the dominant and servient land.
2. By thirty-year limitation, but this method can only target continuous and apparent easements (Article 690 of the Civil Code). Example: servitude of view.
3. By father’s destination when a permanent and visible work exists on the date of property division, signing of an easement (for example a paved road) and the act of division does not contain any stipulation contrary to its maintenance.
- The owner of the servient land must have a genuinely passive attitude: it must allow the servitude to be exercised without impeding it. (Article 701 of the Civil Code)
- The owner of the land benefiting from the easement must not do anything that worsens the situation of the land servitude. (Article 702 of the Civil Code)
The Civil Code distinguishes three main easement categories
- Easements deriving from the natural condition of the premises (Articles 640 till 648 of the Civil code). Examples: water flow, demarcation
- Easements imposed by the law (Articles 649 till 685-1 of the Civil Code) The purpose of these easements is "public or communal utility". These are town planning and public utility easements which are seen previously or "the utility of individuals”. Examples : joint
easements (Articles 653 to 673 of the Civil Code), respecting distance from constructions (Article 674 of the Civil Code), views (Articles 675 to 680 of the Civil Code), roof sewer (Article 681 of the Code civil), right of way in the event of an enclave (Articles 682 to 685-1 of the Civil Code). Article 682 recognizes the owner of a landlocked land, the right to "claim from the land of his neighbors a sufficient passageway, to ensure the comprehensive service of his funds, subject to compensation proportionate to the damage the latter can. cause. "
- Conventional easements (Articles 686 to 689 of the Civil Code) Article 686 of the Civil Code allows owners to establish on their properties or in favor of these, such easements as they may like, provided that they don’t go against the public order. It must always be an
imposed on one fund and useful for another fund. The easement can solely be established or modified through agreement by a notarial act, which must be published to produce its effects with regard to third parties and mainly with regard to subsequent owners. Past easements are only enforceable against the purchaser if they are mentioned in the title deed or if the easement agreement has been published in the
Examples: an agreement to establish a right of way, which is not regulated by law, which means beyond the existence of a landlocked land or for the prohibition or limitation of building, which is a consequence from a common courtyard easement.
How to stop an easement?
Articles 703 to 710 of the Civil Code, easements are stopped in four ways:
- Through the impossibility of using these.
- Through confusion of funds.
- Through non-usage for 30 years.
- Through contractual modification or owner’s waiver for the dominant land.
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