Hello SFNers. I'm looking for some legal advice here. Some of you who know what I do for a living will surely be saying - he should know this stuff already - but I have a doubt.
I own a house in the Charente that my mum lives in. For all intents and purposes, it's my mum's house, but I am the legal owner. There is free access to the front door, but the rear door is accessed over someone else's land. All rights of way have been long established and are all subject to long standing rights confirmed by notarial act.
This rear access is essential for diesel and wood deliveries. There is no other access to the rear.
The kindly neighbour over whose land we have the right has approached my mum this morning stating that he is willing to suppress this right of way as it is affecting the sale of his house and create another access over another neighbour's land. The other neighbour has already told him to bog off. The guy wanting to suppress the right has since been to the Maire and has been told that the Maire will put pressure on the refusing neighbour. To be honest I think the thing affecting the sale of his house is the price - but that is my opinion. For the record, the right of way is used on a daily basis by my mum.
My question is: Can the neighbour suppress the right without my consent, even if the Maire gets involved?
I think I know the answer, but.....all practical examples and experiences will be welcome.
ps: I don't want to know what would happen if it was the UK thanks.
Well ours isn't but it would really help us to keep the nettles down with a good trample now and again.
Slightly OT, but this discussion on servitudes reminds me of problems with access to wells that were considered "communal" - in theory, anyone can walk over your land to access it and draw water from it, even if it is in the middle of your garden !
That's right. perhaps to add is that 'continuously for a period of 30 years' means that and there is no issue about change of ownership however often during that period (or longer). It would seem, the mairie explained anyway, that 'not used continually over 30 years' means that if it is, for instance, a path that is maintained (grass cut) and somebody uses once a year, as long as it is used that often with no year when it is not used, that counts as continuous. Also, 30 years begins with when that route, piece of land or whatever the case may be was recorded on the cadastrial plan. We have a plot that belongs to our English 'developer' absentee neighbour who thinks he can just chuck us off. However, we own the wall the terrace is on and have a a three metre strip where the house meets the road that would block access if we were bloody minded. The previous owners used it since the 1940s, we have it ploughed annually and although not planting it this year to rest the soil are maintaining it by cutting grass, having hoed and whatever else is necessary. The man thinks he can simply have a digger turn up and have the terracing demolished including the one we 'squat'. The maire has said no building permission can be given since the water main passes through the bit that is a small field by the road and two branches of electricity separate over it and telephone lines cross it, thus three cables mean it is not constructible. Nonetheless, an estate agent has the plot on offer as a building plot (mind you, five years on and not a single viewer). It seems the 'rules' do not always matter.
It is a minefield which the people up the road with their back path which has been in use since the 1970s when the house was built are facing claim and counter claim about whether it was or was not used, as if the 'developer' who bought well after that would really know since he has never lived here but has managed to get 'reliable' witnesses to state the path is never used (although the house stands alone and the single man in the only house nearby is so at war with the English guy himself that it cannot be him for one).
Nick,
If the servitude is registered with the cadastre then the only way for your neighbour to get rid of it legally is to show that it has not been used continuously for a period of 30 years, or at least that is my understanding of the context. As that does not appear to be the case, then anything the Mairie undertakes whether by "arrêté municipale" or other legal instrument, would be considered an "excès de pouvoir" - which would nonetheless require fighting it out in the Administrative Tribunal. So, if things do turn sour, be prepared for a long and costly fight.
That says it all Tracy!
We watch out for cars with a 75 number plate, they are even more dreadful on our lanes than the locals.
If you have an existing structure that has been there for X years then tough luck, she had better learn to pole vault!
We don't mind giving occasional access but the problem is it is a row of very large townhouses on a main road - all joined. The house on the other side is the old gendarmerie and has about a dozen apartments, all with no access - the houses are in the region of 200 years old and historically have never had access. About 20yrs ago, the previous owner decided it would help her house sell if she purchased an additional 2000 m2 to give her house access to the rear. Can't see how now about 15 other households can now decide they have right of way over our garden? It would be like Piccadilly Circus as they say.
The additional point is that it is not very helpful for her to open with the discussion with the fact that she has the right to do this and is going to do it and we must knock down our wall to give her passage - she is a Parisienne!
Thanks Brian, will start at the Mairie then.
Our right of way is established by notarial act, so there is no doubting it and as you say Brian, the cadastrale refs are all there.
Tracy, seems like you have the reverse situation to ours where the neighbour wants to create a right. I really don’t know how that works but can envisage two scenarios. One where you are in agreement and you negotiate the terms and the second whereby if the neighbours house is totally enclaved with the only access being across your plot.
If a path or track is shown on a cadastrial plan it is established and then the servitude law applies. That is the starting point. It may not be on the cadastrial plans that came with the house, but the mairie will have detailed ones of the entire commune showing rights of access and rights of way with everything else.
We had a potentially similar problem with our last French house over a "passage de servitude to our garage". The advice we were given included something like" le droit de trente ans" Apparently if one had used an access for 30 years or more for say a horse & then bought a tractor one had the right to enough space to pass with the tractor etc etc. It worked for us & when I told our nasty welsh neighbour she couldn't stop our access even she accepted it. I may still have photo copies of the relevant law if required.
Interesting, we have just had a chat with our neighbour expressly about the fact that she would like right of way over our land. In fact, she has approached us and said that she believes she has the right to do this anyway. As we are on town gas and there is no necessity to do this apart from the fact that it would give her off road parking, we'd be very interested to know what you have found out Nick.
We are very happy to give her temporary access to have work done on her house - she would also like her rear terrace extending - but not happy to give unlimited access forever. For reference her house has obviously been built onto ours at a much later date by the previous owners selling off part of their land.
This could have many repercussions as we are the only house in a row of houses that has access to the rear. The previous owners purchased an additional 2000m2 to access the rear and build a garage and we are now concerned everyone will want to use out excessively long driveway - you can get into 4th gear driving down the drive - that's how long it is.
That's what it seems like to me. Also the maire, who might (cough, cough) be biassed appears not to have the last word.
Thanks Brian. So it sounds like he can't just apply to have the servitude waived without us being consulted. Is that what you're saying Brian?
Don't compare with the UK. Rights of way are designated and cannot be suppressed by a landowner, it is a complicated planning issue that takes time and usually requires a diversion. Unless it is an historic right of way, then it is there point.
As I understand it here from a dispute with our neighbouring English 'developer', the footpath users have used it for X number of years and it was already a path before he bought the land 15 or so years ago. It would also cut off their back entrance. So they fought the mairie where they said it could be plough up and forgotten, then then built over, the family went to the departmental authority responsible who said it should not be. The former maire did not like that, undermined his authority and all that, so he appealed against the decision. Thereafter as far as I know it hangs in the air. However, the bottom line appears to be that a mairie might favour a person ('usual thing') but that does not mean they absolutely have the last word.