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Right of Way Grants No Right to Build

A right of way does not confer a right to lay cables and pipes for utility services, a French court has ruled.

Given the primarily rural nature of land use in France, the use of rights of way is fairly common.

As a general rule, these rights of way (known as a servitude de passage) run with the land, meaning that subsequent owners of the properties are bound by them.

As a result, purchasers of French property need to ensure they question owners about the existence of easements over the property, and that the issue is dealt with as part of the contract process.

In the recent case before the courts the beneficiary of a right of way from the public highway to his property sought to argue that it also gave him the right to lay cables and pipework to enable him to construct a dwelling on his land.

At the time, the right of way was merely being used to obtain access to a field.

The French Cour de Cassation decided that no such right to lay underground services existed unless it had been expressly provided for in the right of way that had been granted.

The decision has surprised some commentators as it does not appear to be entirely consistent with previous decisions on similar cases of this nature.

However, the principle that has now been adopted will be a relief to many owners, who have often felt uncertain about whether a right of way to agricultural land through their property runs the later risk of new development taking place.

The answer to that question now seems to be that you need to carefully read just what rights are granted in the right of way to see what may later be possible.

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This article was featured in our Newsletter dated 01/07/2010




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