It can happen that a plot of land cannot be built on because there is no access to the public highway. To avoid an inextricable situation, the law allows you, under certain conditions, to require your neighbour to provide access by creating a right of way.
An easement is a real property right between a dominant and a servient land. This right is perpetual and attached to the plots, which is why successive changes of ownership do not cause it to lapse.
There are many different types of easement, the best known of which is undoubtedly the right of way. Although this right is generally conventional, i.e. established by mutual agreement between several parties, the law provides for the possibility of imposing this type of easement. This is known as a legal easement.
Under certain conditions, the Civil Code allows a right of way to be imposed on a neighbour's plot or plots.
As the law relating to easements is highly complex, this article cannot replace professional advice. Our agents and legal department will be able to help you.
What are the conditions for imposing a legal right of way?
To benefit from a legal right of way, your property must be enclosed. This is the case when a property, surrounded by other properties belonging to third parties, has no exit or only an inadequate exit from the public highway.
The definition of an enclave is based on case law.
For example, the Court of Cassation (Cass. 3e civ., 14 Jan. 2016, no. 14-25.089) has ruled that access via a very steep staircase with 90 steps does not open up a property, whereas "access by a motor vehicle corresponds to the normal use of a property for residential purposes".
Conversely, land that has a passageway whose narrowness creates a significant risk of scratches on doors or mirrors is not considered to be enclosed (CA, Paris, 6 Dec. 2019, no. 18/05356).
It should be noted that no legal right of way can be claimed by an owner who has himself enclosed his land.
In addition to the existence of an enclosed plot of land, the second condition is that the servient land must receive compensation, which is estimated on the basis of the loss suffered.
How is the right of way exercised?
To gain access to public roads, the right of way must be as short as possible or as unobtrusive as possible. The respective interests of neighbouring properties must dictate its route.
The owner of the servient land (the land that supports his neighbour's right of way on his plot) must respect the easement by taking care not to diminish its use or make it more inconvenient. It will be up to the court to decide whether the use is diminished or made more inconvenient. In principle, the installation of a gate will not be considered as making access more inconvenient.
Under certain conditions, it is possible for the owner of the servient land to request a change in the basis of the easement.
As for the land that benefits from the easement (the dominant land), it must make the necessary improvements to use the easement without being able to make changes that would worsen the condition of the servient land.
Can a legal right of way be extinguished?
A legal right of way is automatically extinguished in three cases:
- if the owner of the enclosed land acquires adjoining land with access to the public highway;
- as a result of the creation of a public road or path along the enclosed land;
- by the disappearance of the place to which access is gained.
Please note that unlike a legal easement, a conventional right of way does not disappear if another right of way is created at a later date.
In short, yes, it is possible to impose an easement of passage over your neighbour's land in the event of an enclave, in return for compensation that is proportionate to the loss suffered. The easement must be as unobtrusive as possible.
As the law relating to easements is highly complex, this article cannot replace professional advice. Our agents will be happy to help you.
