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Question:
I own a house surrounded by a garden at the end of which is a right of way that benefits the neighbour.
This passageway is not closed off from the road and anyone can enter my garden.
Can I have a gate installed?
Answer:
Your question raises the problem ofaggravating the easement.
This is a difficult question, since there are two conflicting articles in the Civil Code:
-Article 701, which states that the owner of the servient land (you) cannot do anything without the agreement of the owner of the dominant land (your neighbour), even if this inertia results in a reduction in the use of his land or makes it more inconvenient.
-Article 647, which provides that each owner may enclose his or her property.
In some cases, the courts have accepted that the owner was able to close the property with a gate if a duplicate set of keys was given to the neighbour.
Other judges have held that the mere fact of getting out of the car to open the gate is an aggravation of the easement for the neighbour.
One solution might therefore be to install a gate with a remote control, which you would have to provide to your neighbour at your own expense.
Ideally, once an agreement has been reached with your neighbour, you should approach a notary so that the new terms of use of the easement can be recorded.
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