Rights of Way in France

1. 1. Authorisations & Servitudes
2. 2. Landlocked Property
3. 3. Right of Access for Property Maintenance
4. 4. Fishing Rights
5. 5. Shooting Rights

1. Authorisations & Servitudes

We can distinguish two types of general rights of way over land:

1. i. Those of a personal nature which merely authorise one or more parties to use a right of way and:
2. ii. Those that grant rights to the property, and which therefore bind both present and future owners, and which are known as 'servitudes'.

Whilst rights of way by authorisation are often temporary in nature, those classified as a servitude are permanent. That is to say, they apply generally to the property rather than a particular person, or persons.

Whether by mutual agreement or as a servitude, the right of way may be for a particular purpose, or for any or all types of transport, or during particular hours. It is entirely for the parties to specify.

Many temporary agreements of this nature cover circumstances where one of the parties is engaged in constructing a house (or other building) and needs temporary access.

Such agreements can be made verbally, but it preferable that there is a written record, signed by both parties.

If it is not listed then it is not a servitude, but merely an agreement between two or more parties. There are particular rules which govern landlocked land, which we consider later.

The fact that a right of way may be mentioned on the land registry plan, the cadastre, is merely indicative that it is a servitude. The notaire will need to check with the land registry that there is, indeed, a servitude on the land.

This requirement applies equally to rights of way for underground pipes through land belonging to a neighbour. You will need to enter into a formal notarial agreement for a servitude. Do not contemplate anything short of registration of the right of way.

You need to be cautious of rights of way granted to you as part of the purchase of a property. If you are granted a non-exclusive right of way there may well be nothing to later prevent the owner of the land allowing others to use the right of way, possibly as part of new development plans. One approach might be to try and obtain an option on the purchase of the right of way and/or other land affected by it.

Unless otherwise stated, you are not permitted to add a gate. Neither is the owner of the land entitled to impede access by erection of a gate or other barrier, or do anything which would have a detrimental impact on the use of the right of way.

Nevertheless, there is no impediment to beneficiaries of a servitude agreeing to change the terms of the right of way. However, if this occurs, it is imperative that the changes are entered onto the land register.

These rights, once granted, are often a source of later dispute and nuisance between the farmer and the owners of a property.

If you do enter into an agreement you would be wise to ensure it specifies, in precise detail, the rights of access, including maintenance responsibilities, security and those permitted access.

Clearly, if you are buying a property in France, you need insist in the sale contract that the property is unencumbered, or to place conditions if there is doubt. Most standard contracts contain relevant conditions and the seller is also obliged to declare them. The later search enquiries by the notaire should also reveal any servitudes on the deeds.

2. Landlocked Property

Where a property has no means of access to the public highway, or the access provided is inadequate, then the owner can invoke le droit de désenclavement, under which a neighbour is obliged to grant a right of way.

The rule applies as much for an older property as a new property, but is more often invoked in relation to properties under construction, or for agricultural or employment use.

Accordingly, if someone decides to build or convert a building for residential use on landlocked land, they only have themselves to blame if a neighbour refuses access through their land!

Normally, where access is sought then the shortest possible route should be taken, except where another route would cause less nuisance or damage to neighbouring property.

Formally, the process must be commenced by a written request to the adjoining landowner for a right of access.

If agreement is reached, then it should be signed via a notaire and placed on the land registry.

The use of a land surveyor (géometre) is normally required to provide a detailed plan to be annexed to the agreement.

If agreement cannot be reached then the matter would need to be considered by a Tribunal de Grande Instance where the appointment of an avocat would be necessary.

Where subsequently the property is provided with alternative access to the public highway, then the owner of the land on which the right of way is granted can ask for the right to be extinguished.

3. Access for Property Maintenance

The law recognises the right of a property owner to obtain temporary access to a neighbour’s property in order to undertake maintenance work to their own property.

It is a phrase that supposes a need to place a ladder in the neighbour’s garden, or to erect scaffolding.

However, no one has the right to simply enter onto the property of a neighbour and commence maintenance activity.

In the first place, you need to approach your neighbour with a request for access, with details of how and when it is proposed to take place, and for what purpose.

Whilst no automatic right is granted, where a neighbour unreasonably refuses access, a court of law can order that access be granted for a specific and temporary purpose, and for a limited duration.

There may be local regulations that govern the operation of this rule so, in the event of dispute, you should contact your local mairie for further information.

Where the works are to be significant (of some duration and where the risk of damage to a neighbour’s property is quite possible) then it may be appropriate to arrange for a huissier (an official bailiff) to undertake a condition report on the site so that any subsequent damage can be later verified.

If a neighbour refuses access for legitimate property maintenance, for which access is imperatively required, then the matter would need to be considered by a Tribunal de Grande Instance. An urgent hearing for an injunction can be arranged under the process known as en référé.

4. Fishing Rights

Unless otherwise specified by agreement, no third party has the right to fish on a private stretch of water that runs through privately owned property.

However, where the river or stream is publicly owned then owners are required to permit fishing, to those with a fishing licence, and to leave a space of 3.5 metres wide along the river bank for right of passage and fishing stations. This space can be reduced to 1.5 metres by the local préfecture.

Needless to say, this is often a source of great conflict between fishing enthusiasts and property owners, with owners sometimes erecting barriers to prevent access. These conflicts often need to be resolved through a formal written agreement.

An owner is not obliged to grant right of access over their land to reach the river.

5. Shooting Rights

As a normal rule, no one can have shooting rights on a private property without the specific consent of the owner of the land.

Nevertheless, the law permits local shooting clubs to organise themselves into an accredited communal association, called (Acca), which then grants them shooting rights for successive periods of five years over all land within the designated commune.

Despite the often widespread impression that this occurs throughout France, and that you can expect chasseurs to go trambling through your potato patch, this is not so.

In the first place, the associations do not operate in all parts of France, so in around two-thirds of the country, this law is not operational.

Secondly, land within a circumference of 150 metres around a residential property is excluded from any shooting rights unless specifically granted by the owner. Larger blocks of land in single ownership in excess of 20 hectares are also excluded.

An owner can also refuse access to an accredited shoot if they object to the sport on moral grounds. Their opposition must be notified to the préfecture at least six months before the expiry of the five-year licence period.

The letter must be sent by recorded delivery and the land must also be clearly marked by suitable notices – chasse interdit.

If you miss the deadline, then you must give notice at least six month prior to the expiry of the new 5 year licence, before the end of the shooting season. You would be best advised to take good advice as to the form and precise date for doing so.

Alternatively, the local associations are required to set aside 10% of the land in their area as a reserve for wild life and fauna, so you could ask for your own land to be incorporated in the reserve.

If any of the land has a tenant farmer on it, then they cannot be denied shooting rights, although these rights to not extend to friends and family.