Easements in France: right of way, landlocked land, 30 years

What is an easement?

The Civil Code defines it as “a burden imposed on one property for the use and benefit of a property belonging to another owner” (art. 637). It establishes no pre-eminence of one piece of land over the other (art. 638) and arises from three sources (art. 639):

• the natural situation of the land (for example the natural flow of water down to lower-lying land, art. 640);
• the law (right of way for landlocked land, distances for views, etc.);
• an agreement between owners.

The Code distinguishes two pairs of categories, which are decisive for prescription:

The right of way and landlocked land

An owner whose land has no access, or insufficient access, to the public highway, for its use or for building or subdivision operations, may claim sufficient passage over neighbouring land, subject to compensation proportionate to the damage (art. 682).

The route follows three rules:

• the passage is taken, in principle, on the side where the route to the public highway is shortest (art. 683);
• it is set at the point least damaging to the neighbour (art. 683);
• if the landlocking results from the division of a plot (sale, partition, exchange), passage can only be claimed over the land resulting from that division, unless this is impossible (art. 684).

The assiette (route and extent of the right of way) and the way it is used are fixed by 30 years of continuous use (art. 685). The claim for compensation can become time-barred, but the right of way continues (art. 685). When the land ceases to be landlocked, for example after a road is built, the owner of the servient land can invoke the extinction of the easement; failing agreement, a judge confirms it (art. 685-1).

Note: land that is merely difficult to access is not landlocked. The neighbour’s written agreement is then needed to create a servitude conventionnelle (easement by agreement) (service-public.gouv.fr). In a dispute over the right of way or the compensation, fact sheet F2040 presents a prior attempt at settlement through a conciliateur de justice (court conciliator), a mediator or a procédure participative (collaborative procedure) as compulsory before going to the tribunal judiciaire (civil court). Article 750-1 of the code de procédure civile (Code of Civil Procedure) only requires it for certain claims:

• those for a sum not exceeding €5,000;
• those falling under certain actions listed in the code de l’organisation judiciaire (Code of Judicial Organisation), such as boundary-fixing (bornage), planting distances or the flow of water (COJ, art. R211-3-4 and R211-3-8);
• those based on an abnormal neighbour nuisance (trouble anormal de voisinage).

The right of way for landlocked land does not appear in these lists. A compensation claim of €5,000 or less, however, remains subject to the prior settlement attempt.

Thirty-year prescription: acquiring or losing an easement

Acquiring after 30 years. “Continuous and apparent easements are acquired by title, or by thirty years’ possession” (art. 690). A view through a window that has existed for more than thirty years can thus become a right.

A right of way is not acquired through use. Continuous non-apparent easements and discontinuous easements, whether apparent or not, “can only be established by title”; “even immemorial possession is not sufficient” (art. 691). A path used for fifty years without a written deed therefore does not, by itself, create a right of way by agreement. The only exception: the destination du père de famille (arrangement made by a former common owner), where two plots now separate belonged to the same owner who created the arrangement themselves, counts as title for continuous and apparent easements (art. 692 and 693).

Losing after 30 years. “An easement is extinguished by non-use for thirty years” (art. 706). The period runs from the day on which its use ceased for a discontinuous easement, or from the day of an act contrary to it for a continuous easement (art. 707). If the dominant land is held in indivision (joint ownership), use by a single joint owner prevents prescription for all of them (art. 709).

Easements and property sales

The easement is attached to the property, not to its owner: it passes automatically to the buyer (service-public.gouv.fr). Hence the importance of knowing about it before signing:

• service-public.gouv.fr lists, among the items in the promesse de vente (preliminary sale contract) for a home, the documents mentioning easements and the existence of an easement;
• for building land without direct access to the public highway, it recommends checking with the seller whether there is a right of way; failing this, one must be established before the permis de construire (building permit) application is filed;
• the certificat d’urbanisme (planning certificate) gives information on public-interest easements (servitudes d’utilité publique: pipelines, water catchments, historic monuments, etc.).

The seller’s warranty. If the property sold is burdened, without this being declared, by non-apparent easements so significant that the buyer would not have bought had they known of them, the buyer may ask for the sale to be cancelled or settle for compensation (art. 1638).

Views over the neighbour. Without an easement, you cannot open a direct view, or a balcony, less than 19 decimetres (1.90 m) from the neighbouring property, nor an oblique view less than 6 decimetres (0.60 m) from it (art. 678 and 679).

Which professional to consult

The notaire (notary) draws up the deed creating an easement by agreement and, on a sale, checks the easements shown in the title deeds. The géomètre-expert (chartered land surveyor) marks out the boundaries of plots and can show the route of a right of way on a plan. The agent immobilier (estate agent) must inform the buyer of any easements as part of their duty to advise (service-public.gouv.fr).