When purchasing property in France, the transfer deed prepared by the notaire will very often specify that in the event of any error in the surface area of the property or the description of any easements affecting the property, the purchaser has no right of recourse against the vendor, in the absence, of course, of fraud. It is important therefore that any prospective purchaser recognises the potential impact of this provision.
Whilst it is true that most properties will generally have visible boundaries in the form of hedges, walls, ditches etc these do not constitute a legal guarantee as to the situation of the boundary, at least not unless their position has been continuous and uncontested for at least 30 years.
Similarly, any information on the ‘cadastral’ plan is principally for fiscal purposes (serving as a basis for calculating the local taxes) and has no legal value as such although in the absence of any other evidence, it is often taken as proof of the boundary. In reality however it is only one element of ‘proof’ amongst others.
A further potential source can be the title deeds to the property although these rarely refer specifically to boundaries. Nowadays, the description of the property often simply refers to the total surface area of the land based on the ‘cadastral’ plan references.
It is important therefore to consider all the possible sources and ensure that any inconsistencies are resolved prior to purchase. This would require the agreement of any neighbours, possibly with the intervention of a ‘geometre’. A ‘geometre’ is a professionally qualified person who is entitled to establish boundaries.
Easements (servitudes) are defined by Article 637 of the Civil Code as “a charge imposed on a property for the use and utility of another property belonging to another owner.” By definition therefore they relate to land in different ownership but affect that land in different ways. A right of way for example will represent a limitation to the enjoyment of the land on which the right of way sits but will be an advantage to the land which benefits from it.
Easements can be created in one of four ways:
These are imposed by law between owners of land but can be expressly waived by those persons they are designed to benefit. Examples would be a right to light, a right for a property to claim access over a neighbouring property for the purposes of accessing the public highway where that property has no other viable access, a right to a minimum distance from the boundary for any planting and a right to allow surface water drainage.
-By agreement between neighbouring owners
Owners can agree in writing to any easement they wish with a neighbouring property owner, provided it relates to the land and not the person and is not contrary to public order. Examples of such easements would be any modification of an easement imposed by law, rights of way and covenants (for example restricting the right to build).
Easements can be acquired by usage but only if it can be established that an easement has been used continuously and has been visible for a period of 30 years. In order to demonstrate continual usage, there must not be any human intervention. Therefore, although a right of way will be visible (apparent) it cannot be acquired by prescription because it cannot be exercised without human intervention. Contrast this for example with a right to light which exists as a matter of fact because of the existence of a window overlooking the neighbouring property.
-By the landowner on sale of part of the property
An owner of land can create an easement when he sells off a part of the land in circumstances where, prior to the sale, he has used the land in a way which, had the land been in different ownership, would have given rise to an easement.
On a sale of property a vendor must declare any easements which are not visible (non-apparent) or are hidden and any failure to do so enables the purchaser to either terminate the contract or seek damages, providing he can demonstrate that the easement is of such importance that he would not have purchased had he known. Clearly this provision will not apply to easements which are visible (apparent) which will be the position in most cases. It is important therefore, when inspecting a property, to be on the lookout for easements and to seek to gather as much information as possible for example from the title deeds. Whether such information is available or not before signing the “compromis de vente” it is a wise precaution to include a conditional clause relating specifically to easements in the event any easements are ‘discovered’ between signing the compromis de vente and the appointed date for completion.
© 2011 Edward Coxall, Mayo Wynne Baxter LLP