Roche & Cie

Real Estate : Understanding easements

26 Oct 2016

Le Figaro Immobilier in partnership with notaries in France, answers questions about easements that may encumber properties.

The seller must be loyal and inform the purchaser of everything related to the property sold and its accessories. This information relates in particular to the easements.

Understanding easements.

An easement is a charge imposed in a built or an unbuilt building or not (called “servient tenement”) in favor of another property belonging to a different owner (called “fund”).  This feed can be visible or not (right of way), result from the natural situation of places (drainage), be made necessary by a construction project (prospect servitude, common yard, etc …).

An easement may result from an agreement between neighbors and have been established by convention or not, or be imposed by the judge.

Depending on circumstances, it can strain the fund for a fixed period or for life, or benefit that current land owner, his life.  Contrary to popular belief, only easements “continuous (the use of which is or may be constant without needing because of man: water pipes, sewers, views …) and exposed (by looming outdoor areas, such as door, window, water) “can be acquired” after a thirty years possession “(Article 690 of the civil Code).

A purchaser can therefore not go to the neighbor simply because the previous owner has always borrowed this passage. All purchasers are concerned Any potential buyer or current owner of a building or land, whether or not a project to construct, restore or raise must necessarily list the issues related to their rights and obligations, in particular vis-à-vis some thirds.

For example : The purchaser of land in the countryside or in the mountains, located roadside and plans to build the second home of his dreams believes a priori that it is within its rights to do so.

However, the plots behind the field have no alternative access to the highway that its future course.

Article 682 of the Civil Code states: “The owner of the money is landlocked and has on public roads no way, or insufficient outcome, either for agricultural, industrial or commercial exploitation of his property, or for making building operations or subdivision, is entitled to claim the funds to its neighbors a sufficient passage to ensure complete service of its funds, dependent compensation proportionate to the damage it can cause.

Accordingly, the new land owner is forced to leave a passage to the other owners to access public roads and in case of failure, they may use the courts. This will be the judge to set the influence of the passage and the amount of compensation.

This embarrassing situation can totally change the construction project and significantly increase the cost of work.

Another example :
An acquirer proposes to be a buyer of a house to renovate. One of the major problems is that to achieve the desired work, it is obliged to go (and stay for a while) on the neighbor’s property. Whether it likes it or not, the owner has an easement “scale tour ‘(Article 691 of the Civil Code), which provides a right time to do the work.

Last example, more common in practice:
An owner is planning a extension of his dwelling house or build a garage, and until property line.
Given the local plan and the terrain, the authorization to perform its expansion until ownership limit may be granted by the municipality that if he gets the approval of the neighbor to make some its buildable land or prohibit construction beyond a certain height … most often, the municipality determines the issuance of the authorization for the establishment of a common court of servitude, which must always be seen in a deed for publication in the property file.
Precautions to take before buying
The Civil Code provides the absolute nature of property rights, but subject to third party rights.
These three examples illustrate the importance and risks that may cause easements on the occasion of a real estate purchase or once the property acquired.
If the seller must inform the buyer of easement encumbering or benefiting the property sold, the purchaser must also learn about the subject.
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