Rights of  way in France

People who are considering purchasing a property in France may become concerned by finding out that there is a right of way on the property they propose to buy or may feel concerned at becoming landlocked.

French law offers a treatment that is somewhat different to the rules applicable in the English legal system. Rights of way may arise in different manners, essentially by operation of law, contractually or by lapse of time. 

1. Contractual right of way:
In the case of a contractual right of way, this must be published at the Registrar of Titles and designate both the parties involved and the two or more pieces of land involved.  Examination of the title will normally reveal where the right of way is and how it can be used (usually at all times and with any sort of vehicle, but this can be made more restrictive), it may provide for an indemnity to be paid by the owner of the plot of land in favour of which the right of way is granted  (such plot being named the ‘fonds servant’) by the beneficiary of the right of way i.e. the owner of the ‘fonds dominant’, although such indemnity is usually minimal.  The parties’ agreement may provide for an obligation by the beneficiary of the right of way to make good any damage which he causes to the land upon exercise of his right.  It is important to have such rights and obligations spelt out clearly.  There is no particular limitation to the rights to the contractual provisions which may be agreed, for instance the installation of a gate can be provided, but it is important to explain what the purpose of the right of way is in order to bring clarification at a later stage in the event of a judicial dispute before a Court of law. 

Rights of way may also be implied, when they are an accessory to another easement, for instance a right to use the waters of a well. 

A right of way may also imply the right to lay pipes underneath the ground or even to have cables run above ground, but that is nowadays limited to rights granted by operation of law, as opposed to contractual rights, according to the latest case law.  If the parties’ intention is also to have the possibility of laying pipes, it is highly recommended to specify this expressly. As a matter of fact, article 686 paragraph 2 of the French Civil Code provides that the exercise and scope of easements is determined by the title, and that only in case of absence of contractual provisions are they regulated by default rules of the Civil Code. 

The default rules are aimed at giving an efficiency to the right of way and thus, the beneficiary of such right is allowed to carry out any work or install any equipment necessary for the proper exercise of such right.  It is therefore best to provide for this contractually, in order to avoid future disagreements as to what is or what is not permitted.  However, whatever is put in place has to be limited to what is strictly necessary for the proper exercise of the right of way. 

Conversely, the debtor of the right of way must refrain from preventing, or making more difficult the exercise by the owner of the ‘ fonds dominant’ of his right of way.  Such attitude is generally sanctioned by damages or demolishment of any equipment put in place in violation of such right. 

It is essential to submit any right of way or other easement issues to a qualified lawyer so he can identify exactly the scope of the right and its legal implications for both parties.  This is all the more important as the right involved may in fact not be an easement at all but a personal right granted in consideration of the person of the beneficiary and to him only.  That sort of right may still appear on a title but will not qualify as an easement.  Such a right may disappear or be revoked upon a conveyance while a proper easement will remain attached to the land, in general in perpetuity. 

It is essential with rights of ways and easements generally that they should not put buyers off, as in the vast majority of cases, the granting and exercise of such rights take place amicably between well meaning neighbours, provided that the parties do not come forward in an antagonistic or forceful manner, insisting on their rights. 

Pursuant to article 701 of the Civil Code if owing to a change of circumstances the performance of the easement becomes more onerous for the debtor of the right, and for example prevents him from enhancing his property.  He may offer an alternative route for the access, provided that such access is not thereby made more difficult.  In that case, the beneficiary of the right of way cannot refuse the change.  The costs of such a change will be borne by the debtor of the obligation to grant the right of way. 


2. Right of way by passage of time:
Easements such as rights of way may also be acquired through the passage of time.  However, this is a very residual category, firstly because it only applies to continuous and apparent easements (Civil Code, article 690) and it must be exercised for at least 30 years.  It will then be up to the person claiming that he is the beneficiary of an easement to prove that it exists. If it has not been exercised for a period of time, the easement will be treated as suspended and in that case, so will be the 30 years period. 

3. Right of way by operation of law:
The typical situation in which a right of way may arise by operation of law is that of landlock, where the owner of a plot of land has no or an insufficient access to a public road for the exercise of an activity, whether it is private access by car, or the exercise of an agricultural, industrial or commercial activity, or for the realisation of construction operations etc.  Such situations may also arise upon the division and sale of plots of land. 

The first step to take in that sort of situation is to approach the owner of the plot against which access is required and to negotiate a contractual right against an indemnity.  Another possible avenue is to exchange plots of land or parts thereof after division, with the assistance of a land surveyor (‘geometre’) and publication at the Land Registry.  A plot of land may also be treated as landlocked because the cost of creating an access to the public road through the most direct route is disproportionate compared with the value of the land.  In all of these cases, the landlocked owner is entitled to a right of way by operation of law, pursuant to Article 682 of the Civil Code.  This is so whether or not his land can be built on or not and in such cases, if the neighbour refuses to grant an easement amicably, the Court would grant a right through the most direct route, but not necessarily, depending on all the factual circumstances on site.  Such a right of way granted by Court would normally also include the right to lay underground pipes or cables (for utilities, drainage etc). 

However, it is important to note that a land owner will not be considered to be landlocked if he has landlocked himself deliberately (e.g. by destroying an existing access etc).  He would also not be treated a landlocked if there already exists a contractual right of way that he simply does not find convenient.

The subject of easements is vast and has given rise to very considerable case law. Rights of way are an example, but there exists a large number of other types of easements, such as rights of sight, rights to light, rights to the discharge of water, rights to prevent a neighbour from building over a certain height or at all, right to lay pipes, right to lay equipment against a neighbour’ property, right to access the neighbour’s property to use a ladder to have access to one’s own roof in order to repair it, etc. 

The possibilities are very numerous, but what is to be remembered is that the existence of one or more easements on a property in no way constitutes an automatic source of problems and will often be reflected in the price of the property purchased if such easements constitute obligations against the property purchased.  All that is needed is a proper investigation and explanation by a qualified French lawyer.

Hervé Blatry
Avocat
TEE France, STANLEY TEE LLP
Direct tel: 0127 971 0621
Email: heb@stanleytee.co.uk


 

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