We can distinguish two types of general rights of way over land:
i. Those of a personal nature that merely authorise one or more parties to use a right of way and:
ii. Those that grant rights to the property, and which therefore bind both present and future owners, and which are known as an easement - servitude in French.
Whilst rights of way by authorisation are often temporary in nature, those classified as an easement (servitude) are permanent. That is to say, they apply generally to the property rather than a particular person, or persons.
Some easements are those granted to the statutory authorities, such as highways or electricity - servitudes instituées pour l'utilité publique ou communale - which we do not consider in any detail in these notes.
Whether by mutual agreement or as an easement, 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 the right of way is to be of a permanent nature, applying to the property, then the only definitive way of ensuring it is permanent and enforceable is to ensure it is registered with the French land registry - the bureau des hypothèques.
If it is not listed then it is not an easement, but merely an agreement between two or more parties. There are particular rules which govern landlocked land, which we consider later.
Some easements not registered with the French land registry can be of a permanent enforceable nature, but it will depend on the nature of the easement (is it absolutely necessary?) and the evidence that exists, eg included within a deed of sale.
The fact that a right of way may be mentioned on the land registry plan, the cadastre, is merely indicative that it is an easement. The notaire will need to check with the land registry that there is, indeed, a easement on the land.
Accordingly, if you seek a right of way, and you want it to bind future owners, it is imperative that the agreement is in writing and undertaken via a notaire, who will then place it on the land register.
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. If you seek something permanent, 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.
Likewise if one of the other users is proposing a new construction served from the right of way, for which the existing right of way is not adequate, then they have a right to make application to change the rights of access.
Unless otherwise permitted in the terms of the servitude, they need your consent. If you cannot agree, then a court of law must decide.
In order to safeguard your position, one approach might be to try and obtain a right of first refusal 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 an easement 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.
In the same vein, as a general rule we would urge caution in granting your neighbouring ‘friendly’ farmer or others any rights of way over your land, however informal it may be.
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.
If there is no consideration for the rights of way, then no legal tenancy is created, but even so, be cautious about entering into any kind of informal agreement with neighbours about use of your land.
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 easements on the deeds.
A right of way can be challenged and lost if it can be demonstrated that it has not been used for at least the past thirty years, except where by doing so it would leave the property landlocked.
Next: Landlocked Property
Back: Index - Rights of Way