Easements definition: neighbourhood and right of way
Servitudes of urbanism, public utility, neighborhood, right of passage ... The easement is a constraint imposed on the owner of a property (serving funds), for the benefit of the owner of another property (dominant land).
Easements: Sources of the Law
- Easements mainly result from the Civil Code: Articles 637 to 710 in a chapter entitled “Easements or land registration services” but also from special texts. Either: Urban Planning Code, Rural Code, Forest Code, etc.
- Urban planning easements, which are administrative limitations to the right of ownership are based on the Urban Planning Code, Articles 112-1 to 17 and their regulatory part. These limitations may be instituted in a safeguard perimeter for people and properties” outside areas covered by a local urbanism plan or a urbanism document in lieu thereof."
- Public utility easements (servitudes d’utilité publique or SUP) are not based on the Urban Planning Code but are imposed by laws or regulations of general interest. The Urban Planning Code mentions these easements to clarify their existence in local urbanism plans (Article 1151-43) and the municipal map (Article L161-1) when they are likely to have an impact on the land use. These public easements are included in a list drawn up by decree in the Council of State.
Note: In April 2016, the national portal of the Urbanism or “Urbanism Geoportal” (GPU) has been created to accommodate all documents of urban planning by 2020. These documents are gradually integrated in the Geoportal by the competent authorities (local communities, State, Manager of SUP). If the urban planning document has not yet been deposited on this site, it is available for consultation on the town hall or local community website.
- Easements of Articles L152-1 to 23 of the Rural Code are inserted in the chapter “Equipment and Development Works”.
- Easements of roads and obligations of bush clearing on territories, woods and forests exposed to risks of fire are inserted in Articles L134-1 to 18 of the Forest Code.
Active easements and passive easement
An easement is called active for the owner of the benefited land and passive for the owner of the fund that supports it. Exception to the concept of dominant and servient funds
Regarding easements of public utility, the concept of dominant and servient fund does not exist since this only concerns a building in a public interest in application of a legal text without looking at the usefulness or the advantage of another fund. Examples: hauling and footboard easements along state-owned waterways, pedestrian walkways easements along the coastline, passage of ski slopes easements or those relating to ski lifts, and especially those which benefit from the distribution of services: water, gas, electricity and telecommunications.
Buildings that may be subject to an easement
Article 637 of the Civil Code defines the easement as “a charge imposed on a heritage.” The term heritage means in old law any private real property. An easement, within the meaning of Article 637 of the Civil Code, may therefore apply on a building built or not built that is the subject of a private property, but also on buildings belonging to the private domain of the state or local communities.
Note: Since the 1st of July 2006, Article 2122-4 of the General Code on Property of Public Persons allows owners to establish easements by conventions in accordance with Article 639 of the Civil Code on properties of the public domain. The existence of these easements must be compatible with the allocation of the properties on which said easements are exercised.
Perpetual, temporary and conventional easement
It is said that an easement presents a real character since it is attached to the property to which it is accessory and because all the successive owners will therefore benefit from it or incur it. The easement follows the fund, whoever owns it.
The result is that an easement is perpetual in principle, but the case law admits that one may constitute temporary easements.
If the property is sold, the easement will be transferred with it. It is therefore necessary for the seller to inform the purchaser and that the act of sale mentions the easements, including the conventional ones, but also non-apparent easements of which the owner is aware.
Reporting obligation in case of sale of an asset subject to an easement:
Article 1638 of the Civil Code also makes compulsory for the seller to declare non-apparent or occult easements in the contract of sale, when these easements are of such importance that the purchaser would not have bought the property if he had been aware of said easements. In case of non-compliance with this obligation, the purchaser shall be entitled to request either the termination of the contract, or damages and interests. The Case Law has extended the obligation of the seller to non-apparent easements of legal or administrative origin, such as urban planning easements.
Nature of easements
Article 688 of the Civil Code distinguishes continuous and discontinuous easements:
- Continuous easements are those which use is or may be continuous without the need of a human intervention Examples: water pipe, sewer, view, etc.
- Discontinuous easements are those which need human intervention to be exercised. Examples: right of passage, water drawing right, grazing, etc.
Article 689 of the Civil Code distinguishes apparent and non-apparent easements:
- Apparent easements are visible thanks to the presence of an outside work. Example: an apparent water pipe.
- Non-apparent or occult easements are easements without any external signs of their existence and which are invisible. Example: prohibition on building
How to establish an easement?
As we said, the easement constitutes a real accessory estate right to the right of ownership : The easement is therefore attached to the property and not to the owner. In case of a sale, it is necessary to inform the purchaser of existing easements on the property and even more so if this concern a passive easement depreciating the property (Article 690 to 696 of the French Civil Code).
It is strongly recommended not to constitute an easement by means of a private instrument. Indeed, nothing can guarantee that the easement will be known to the successive owners. Its drafting by your Notary in the framework of a notarial authentic act and its mention with the Service of Land Registration will ensure its transmission and its sharing for all real estate mutations. The Notaire in charge of the sale will then be able to check the conventional easements listed in the previous titles. Concerning urban planning easements, the Notaire shall consult the urban planning documents applicable to the property, including through the national portal “Urbanism Geoportal”.
Easements are established in three ways:
- By title, i.e. by amicable agreement between neighbors. The scope and exercise procedures of the conventional easements are conclusively determined by the title establishing said easements and may only be amended by mutual agreement between the dominant and servient funds’ owners.
- By thirty-year prescription but this procedure may only concern continuous and apparent easements (Article 690 of the Civil Code). Example: view easement.
- By destination of the family father when there is, at the date of a property division, a permanent and apparent work sign of an easement (for example a stone track) and that the act of division contains no stipulation contrary to its maintenance.
Rights of the owner of the fund to which the easement is due
- The owner of the servient fund must have a completely passive attitude: he/she must allow the easement to be exercised without hindrance. (Article 701 of the French Civil Code).
- The owner of land benefiting from the easement shall do nothing that could aggravate the situation of the servient fund. (Article 702 of the French Civil Code).
The French Civil Code distinguishes three broad categories of easements (Article 639 of the Civil Code):
- Easements deriving from the natural situation of the location (Articles 640 to 648 of the Civil Code) Examples: waters flow, boundary line
- Easements imposed by law (Articles 649 to 685-1 of the Civil Code)
Object of these easements: “Public or communal utility”. These are the above-mentioned urban and public utility planning easements or “Usefulness for individuals”
Examples: joint ownership easements (Articles 653 to 673 of the Civil Code), respect of constructions distance easements (Article 674 of the Civil Code), views easements (Articles 675 to 680 of the Civil Code), roofs sewer easements (Article 681 of the Civil Code), right of passage easements in case of enclave (Articles 682 to 685-1 of the Civil Code).
Article 682 consequently grants the owner of a landlocked fund the right to “claim on the funds of its neighbors a passage sufficient to ensure the complete access to its funds, against a compensation proportionate to the damage it may 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 thereof, such easements that may please them, provided they are not contrary to the public order. Such easement shall always be a charge imposed on a fund and useful for another fund. The easement may only be incorporated or conventionally amended by a notarial act which shall be published to have effect on third parties and on subsequent owners. The past easements are only opposable to the purchaser if they are mentioned in the ownership title or if the easement convention has been published in the mortgage registry .
Examples: A convention for the establishment of a passage easement not regulated by the Law, i.e. outside the existence of a landlocked property or for the prohibition or limitation on building resulting from a common courtyard easement.
When do easements cease to be valid?
Easements cease to be valid in four ways (Articles 703 to 710 of the French Civil Code):
- By the impossibility of use
- By the confusion of the funds
- By non-use for 30 years
- By conventional modification or waiver of the owner of the dominant fund.
- I want to buy an apartment. My bank refused my loan. Can I ask the seller a staggered payment of the selling price?
- I'm selling my main home acquired 5 years ago. The notary claims a missing diagnosis: ESRIS. It was not provided to me 5 years ago. Am I obliged to have it done?
- I signed a reservation contract for the acquisition of a property on plan. This contract has been notified to me for more than 1 month, can I retract?
- I own an apartment that is not my principal residence. I put it on sale in order to acquire my principal residence. Can I benefit from a tax exemption on real estate capital gains knowing that I am not the owner of my main home?