Landlocked land, know how to pass the way

Not to be confused with the right of way

Servitude of right of way and right of way are two almost similar concepts. With one small difference, the law recognizes the right of way automatically for the owner of a piece of land if :

• he proves that his land is enclosed ;
• that he is not responsible for this enclavement, for example by constructing a building on the part of the land allowing him to access his home.

If the land is only difficult to access, it is not a right of way arising from the law, but an agreement between neighbors establishing a right of way. This agreement must be in black and white and must specify

• the exact location where the right of way will be exercised ;
• the practical modalities: motorized access or only on foot, the periodicity (every day, at certain hours...);
• the amount of the compensation paid to the owner who is "subjected" to the passage.

If necessary, the content of this agreement can be modified by mutual agreement between the two owners.

Good to know

The seller must inform the buyer of the easements encumbering or benefiting the sold property

Go for the shortest and most practical way

It is the owner of the landlocked property (also called "dominant land" in legal jargon) who establishes the route. The route must be as short as possible between the landlocked property and the public road and cause the least possible damage to the property crossed. The beneficiary of the right of way must pay compensation to the owners of the land crossed (called "fonds servants"). The amount varies according to the importance of the damage suffered (noise, permanent comings and goings, loss of value suffered by the land, etc.).

Very specific characteristics

The right of way must meet very precise "standards". First of all, the passage must be wide enough to allow a car to pass. Generally, it is 3 m but it can be more if the easement serves several dwellings or a farm for example. Indeed, it must allow the crossing of two vehicles. Normally, the easement (or the right of way) does not automatically imply the right to park. The owner of the land used for the right-of-way may even object. However, in most cases, a written agreement between the two parties allows parking. It will be materialized on a plan and will have to foresee its terms of exercise (location...).

Always the owner

The person who holds the easement can continue to use his land as he wishes. He is still the owner. As such, he can plant a hedge along the passage to preserve his privacy, provided that it does not reduce the extent of the right of way. The owner must then maintain and prune the branches so that the vegetation does not invade the passage. The owner of the servient land may also close the passage by putting a gate at the entrance. Be careful, however, to always ensure that the neighbor can use it normally by giving him the gate keys or the remote control. The owner of the easement is therefore within his rights, provided that the gate does not make the easement more "inconvenient or diminish its use".

Everything has an end

The easement of passage ends if :

• the land is no longer enclosed or its access to the public road has been improved;
• the land that benefits from the easement and the land that is subject to it are reunited;
• the owner who benefited from the easement renounces it.

To know more

A right of way is fixed for 30 years of continuous use. After this period, the easement may be challenged by the owner of the servient land if the passage is no longer used by the owner of the dominant land. The owner of the dominant land must then provide proof that the right of way is not being used.

Marie-Christine Ménoire