EVERYTHING YOU NEED TO KNOW ABOUT EASEMENTS

Everything you need to know about easements

Lawyer in Bastia, Lawyer in Corsica, Lawyer in easement law

Private law servitudes originate in the Civil Code. They are found in articles 637 to 710 in a title entitled "Servitudes or land services".

Easements may also be provided for in special legislation. These include the Town Planning Code, the Rural Code and the Forestry Code.

The town planning easements which are administrative restrictions on property rights, are set out in articles L 112-1 to 17 of the French Town Planning Code and in the regulations. They may be instituted within a perimeter designed to protect property and people". outside areas covered by a local urban development plan or equivalent urban development document. "

The public utility easements (SUP) are not based on the French Town Planning Code, but are established by specific laws or regulations of general interest. The Code de l'urbanisme cites them to specify that local town planning schemes (article 1151-43) and the carte communale (article L161-1) must include them in an appendix when they are likely to have an impact on land use.

These public easements appear on a list drawn up by decree by the Conseil d'Etat.

Good to know:

Le National urban planning portal, known as the "Géoportail de l'urbanisme" ("Urban Planning Geoportal") makes it possible to bring together and make accessible all the town planning documents that regulate planning and building rights. These documents are gradually added to the Géoportail by the relevant authorities (local authorities, the State, SUP managers). If the planning document has not yet been posted on this site, it can be consulted on the site of the town hall or inter-communal authority.

The rural law easements set out in articles L152-1 to 23 of the French Rural Code are included in the section entitled "Development facilities and works".

The road easements and obligations to clear undergrowth common to areas, woods and forests exposed to fire risk are set out in articles L134-1 to 18 of the French Forestry Code.

I.- What is an easement (All you need to know about easements)?

Active and passive easements

The easement is said to be active for the owner of the land benefiting from it. It is passive for the owner of the land that bears it. 

Exception to the concept of dominant and servient land : in the case of a public easement, the concept of dominant and servient land does not exist, since the easement is only imposed on an immovable in the public interest in application of a legal text.

Examples:

towage and footpath easements along state-owned watercourses,

-pedestrian rights of way along the coast,

-Then there are the rights of way for ski slopes and ski lifts,

-. and especially those for distribution services: water, gas, electricity and telecommunications.

Properties that may be encumbered by an easement

L'article 637 of the Civil Code defines an easement as " a charge imposed on an inheritance ". In ancient law, the term "inheritance" referred to all private real property. An easement, within the meaning of article 637 of the Civil Code, can therefore be established over built or unbuilt property that is privately owned, but also over property that is part of the private domain of the State or local authorities.

However, thearticle 2122-4 of the Code Général de la propriété des personnes publiques (General Code on the Ownership of Public Property) allows owners to establish easements by agreement in accordance with article 639 of the Civil Code on property in the public domain.

The existence of these easements must be compatible with the use of the property to which they apply.

The different forms of easement (Everything you need to know about easements) :

The article 688 of the Civil Code distinguishes continuous and discontinuous easements :

-. Continuous easements are those whose use is or can be continuous without the need for human intervention. (Examples: a water pipe, a sewer, a view, etc.).

-. Discontinuous easements are those that require human intervention to be exercised. (Examples: the right of way(e.g. right to draw water, grazing, etc.).

Article 689 of the Civil Code distinguishes visible and invisible easements.

-. Apparent easements are visible due to the presence of an external structure. (Example: a visible water pipe...).

-. Easements that are not apparent or hidden are those that have no external signs of their existence and are invisible. (Example: a ban on building...).

II - How is an easement established?

An easement is a real property right ancillary to the right of ownership. It is therefore attached to the property and not to the person of the owner.

In the event of a sale, the purchaser must be informed of any easements that exist on the property, especially if they are passive easements that reduce the value of the property (articles 690 to 696 of the Civil Code).

We strongly advise against creating an easement by private deed. There is no guarantee that successive owners will be aware of it. If it is drawn up by your notary in the form of a notarised deed and registered with the Land Registry, it can be guaranteed that it will be passed on and will be known in the event of any change in property ownership.

The notary in charge of the sale will then be able to check any conventional easements recorded in previous deeds. In the case of town-planning easements, the notary will need to be familiar with the town-planning documents relating to the property, in particular via the national portal " Geoportal for urban planning ".

Easements are established in three ways (All about easements):

-. By title, i.e. by amicable agreement between neighbours. The extent and manner in which conventional easements are exercised are definitively fixed by the title establishing them and can only be modified by mutual agreement between the owners of the dominant and servient land.

-. By prescription thirty years, but this method can only apply to continuous and apparent easements (Article 690 of the Civil Code). Example: right of way.

-. For the father of the family where, at the date of division of the property, there is a permanent and visible structure, indicative of an easement (e.g. a paved road), and the deed of division does not contain any stipulation to the contrary.

Rights and obligations of owners : 

-. The owner of the servient land must adopt a purely passive attitude: he must allow the easement to be exercised without hindering it (article 701 of the Civil Code)

-. The owner of the land benefiting from the easement must therefore do nothing to aggravate the situation of the servient land (article 702 of the civil code)

III - Perpetual or temporary easements?

A servitude is said to be real in nature because it is attached to the property of which it is an accessory, and consequently all successive owners will benefit from it or be subject to it. It follows the land wherever it passes.  

It therefore follows that an easement is in principle perpetual. However, case law allows temporary easements to be created.  

If the property is sold, it will be sold with the easement. The seller must therefore inform the buyer of the easement and the deed of sale must mention any easements, particularly conventional ones, but also any hidden easements of which the owner is aware.  

Thearticle 1638 of the Civil Code makes it compulsory for the vendor to declare easements that are not apparent in the contract of sale, where these easements are of such importance that the purchaser would not have bought if he had known about them.

In the event of failure to comply with this obligation, the purchaser may therefore seek either termination of the contract or damages. Case law has extended the seller's obligation to include non-apparent easements of legal or administrative origin, such as town planning easements.  

IV - Categories of easements

The Civil Code distinguishes between three main categories of easements :

1 - Easements deriving from the natural location of the site (Articles 640 to 648 of the Civil Code). Examples: water drainage, demarcation

2.- The easements imposed by law (articles 649 to 685-1 of the Civil Code). The purpose of these easements is therefore "public or communal utility". These are the town planning and public utility easements described above.

These include the following easements:

-joint ownership (articles 653 to 673 of the Civil Code),

-respect of distance from buildings (article 674 of the Civil Code),

-views (Articles 675 to 680 of the Civil Code),

rainwater run-off (article 681 of the Civil Code),

-right of way in the case of an enclave (Articles 682 to 685-1 of the Civil Code).

Article 682 recognises the right of the owner of enclosed land to ". to claim a right of way over his neighbours' land sufficient to ensure full access to his land, subject to payment of compensation proportionate to the damage he may cause. "

3 - Contractual easements (articles 686 to 689 of the Civil Code)

Article 686 of the Civil Code thus allows owners to establish on or in favour of their properties such easements as they please, provided that they are not contrary to public policy. It must therefore always be a charge imposed on a piece of land.

In order to be published in the Land Registry, the easement must be created or modified by notarial deed. It will then be enforceable against third parties, in particular subsequent owners.

Examples: an agreement for the establishment of a right of way not regulated by law. In other words, outside the existence of a landlocked property or for the prohibition or restriction of building resulting from a common courtyard easement.

V.- How is an easement extinguished (All about easements)

In accordance with articles 703 to 710 of the Civil CodeEasements can be extinguished in four ways:

-the impossibility of using them ;

-confusion of funds ;

Non-use for 30 years ;

-and modification by agreement or waiver by the owner of the dominant estate.

Everything you need to know about easements.

Lawyer in Bastia, Lawyer in Corsica, Lawyer in easement law