Easements - To get out of your way

Can I request a right of way?

According to article 637 of the French Civil Code, for a servitude to exist, two properties must belong to two different owners. A charge is then imposed on one property, known as the "servient" property, for the benefit of the other, known as the "dominant" property. For example, an owner of landlocked property can request a right of way over one of the surrounding properties. For a plot of land to be considered landlocked, there must be no access to the public highway, or no sufficient exit for farming purposes. However, the mere fact that access is difficult is not enough to qualify as landlocked. Nor must the owner of the land not be directly responsible for its being landlocked (for example, if he built on the spot where access was possible). Judges have the sovereign power to decide whether a plot of land is enclosed or not. If it is, a right-of-way must be created. The choice of route for the right-of-way will be made where the path is shortest to reach the public highway.

What are the formalities involved in creating an easement?

The formalities for setting up a right-of-way easement involve a notarial deed (signed at a notary's office). This allows the terms and conditions of the easement to be set down in black and white. This deed will be published in the land register, making the easement enforceable against third parties (i.e. people who have not signed the agreement). The party benefiting from the right of way must compensate the party bearing the easement. The amount varies according to the damage caused by the easement:
- damage caused by its layout (if trees are uprooted, for example),
- damage resulting from use of the right-of-way (noise caused by passing vehicles, for example),
- damage resulting from the loss of value caused by the creation of this easement.

The costs of the notarial deed will also be borne by the beneficiary of the right of way. The same applies to maintenance costs, although it is always possible to agree otherwise.

Can a gate be installed at the entrance to an easement?

Installing a gate obviously makes access more difficult. The principle of article 701 of the Civil Code is that the owner ofland over which an easement passes "may do nothing to diminish its use, or to make it more inconvenient". So you can still close off the passage, but only if you give your neighbor the means of access (gate key, remote control, etc.).

Stéphanie Swiklinski