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Easements : neighbourhood and right of way

­Views, footpaths, vehicular access, water and gas piping... the list goes on.

Easements apply to developed or undeveloped properties, impose obligations on their owners and grant rights to neighbours who are also owners.

  • What is an easement ?

    • When defining an easement, reference is always made to Articles 637 and 686 of the French Civil Code.

    • An easement presupposes two pieces of land, i.e. two properties belonging to two different owners (the two pieces of land do not have to be adjacent to one another). An encumbrance must be imposed on one piece of land known as the "servient tenement" for the use, convenience or advantage of another piece of land known as the "dominant tenement".

    • An easement is said to be "real" because it is attached to the property to which it is accessory and because as a consequence, all the successive owners will benefit from or incur it. It goes with the piece of land whenever the ownership changes. Easements are therefore perpetual in theory, although case-law accepts that temporary easements may be constituted.

  • Easements for public-interest or for private purposes ?

    • Article 649 of the French Civil Code makes a distinction as to whether legally established easements are used for public-interest purposes or for private purposes.

    • The first type concerns encumbrances imposed by the authorities in public interest.

    • They do not have a dominant tenement and include easements such as the obligation on owners of riverside property to provide towpaths and manoeuvring space, footpath easements along the seashore, rights of way for ski slopes or lifts and, most importantly, easement for the distribution of utilities such as water, gas, electricity and telecommunications.

    • It should be remembered that since Article 2122-4 of the French General Code of Property of Public Entities came into force on 1st July 2006, state owned property may be encumbered with private easements. They must be established by contract and their enforcement must be compatible with the purpose for which the land has been allocated.

    • The second type of legally established easements, those for the benefit of private individuals, exist automatically and are imposed on owners.
      Examples of this type of easement are rights of way for land-locked tenements, the regulations on the distances that must be observed when planting crops and other plants, easements of visibility, etc.
      For example, Article 682 of the French Civil Code, which relates to public easements, recognises that the owner of a land-locked tenement has the right to demand of the neighbours sufficient right of way to have full access to the land.

  • Easements established by agreement

    • In addition to legally established easements, there are those established by agreement.

    • Article 686 of the French Civil Code allows owners to establish over their properties or in their favour any easements they wish provided they do not jeopardize law and order. This type of easement must always be an encumbrance imposed on one property that benefits another property.

  • How to establish an easement ?

    • It is highly inadvisable to constitute an easement by means of a private instrument. In this situation there is nothing to guarantee that future owners would be aware of it. However, having it drawn up by your notaire in a notarised authentic instrument and recorded at the land registry service will make certain that it is transferred and that successive owners are aware of it.

    • This type of easement can be constituted in three ways:
      By title, i.e. under an amicable agreement between neighbours.
      Subject to a thirty-year limitation period, but this type can only be used for continuous, apparent easements (easements of visibility, for example).
      By "destination du père de famille" instrument when on the date a property is divided up, a permanent, visible structure exists indicating the existence of an easement (a paved path, for example) and there is nothing in the division instrument stipulating that the easement should not be maintained.

    • The scope and conditions under which agreed easements are used are definitively set by the instrument creating them and can only be modified jointly by the owners of the dominant and servient tenements.

    • The owner of the tenement benefiting from an easement must do nothing likely to worsen the situation of the servient tenement. The owner of the servient tenement must step back and not obstruct the enjoyment of an easement.

  • Find a notaire

    • Real estate specialist, please contact a notaire, which is at your disposal to help you.