French Easements (Servitudes)

Servitudes in French Law

Servitudes (servitudes) are real rights burdening one piece of land (fonds servant) for the benefit of another piece of land (fonds dominant). Governed by Articles 637 to 710 of the Code civil, servitudes constitute one of the principal démembrements de la propriété (disaggregations of ownership), limiting the rights of the owner of the servient land in favour of the dominant land. The French law of servitudes distinguishes between natural servitudes (servitudes naturelles), legal servitudes (servitudes légales), and voluntary servitudes (servitudes conventionnelles), each governed by distinct rules of creation, exercise, and extinction.

Natural Servitudes

Natural servitudes arise from the natural configuration of the land and are not created by human action. They are governed by Articles 640 to 643 of the Code civil. The principal natural servitude concerns water flow: the lower land must receive water that flows naturally from the higher land, and the owner of the higher land may not do anything to aggravate the natural flow (Article 640). The owner of the lower land may not construct embankments or barriers that impede the natural flow. Owners of higher land may channel water for irrigation or drainage, but they may not diminish the natural flow to the injury of the lower land.

Legal Servitudes

Legal servitudes are imposed by law in the public interest or in the interest of neighbouring landowners. The Code civil identifies several categories of legal servitudes, including those relating to boundaries (Articles 646-648), views and lighting (Articles 675-680), drainage (Article 681), and party walls and fences (Articles 653-673). The most significant legal servitudes include:

The servitude de passage (right of way) for landlocked properties (enclave). Article 682 provides that the owner of land that has no access to the public road is entitled to claim a right of way over neighbouring land to reach the road. The right of way must be exercised in the manner least burdensome to the servient land. The owner of the dominant land must compensate the owner of the servient land for the damage caused. The servitude de passage is a legal servitude of necessity, distinct from voluntary rights of way.

The servitude de tour d’échelle (scaffolding right) permits the owner of a building under construction or repair to temporarily place scaffolding on neighbouring land. The servitude de mitoyenneté governs shared party walls and fences.

Voluntary Servitudes

Voluntary servitudes are created by agreement between landowners (servitudes conventionnelles). They are established by titre (title) — typically a deed of conveyance or a separate notarial instrument. Voluntary servitudes may impose any lawful restriction on the use of the servient land, provided they are established in the interest of the dominant land and not merely for the personal benefit of an individual.

The principal categories of voluntary servitudes include rights of way (servitude de passage), rights to draw water (servitude de puisage), rights to discharge water (servitude d’écoulement), rights to light and view (servitude de vue and servitude de jour), and restrictions on building (servitude non aedificandi). The servitude non aedificandi prohibits the owner of the servient land from constructing buildings or from building above a certain height. Such restrictions are common in residential subdivisions and conservation areas.

Servitude de Passage and Highway Access

The servitude de passage for landlocked properties is the most frequently litigated servitude. The Cour de cassation has held that the right of way under Article 682 applies only to enclave properties — those with no access to the public road. If the property has some access, even if difficult or inadequate, the legal servitude does not arise. The Cour de cassation has also clarified that the owner who creates the enclave by dividing their land may not claim the legal right of way over the part they retain (Article 684).

Servitude Non Aedificandi and Town Planning

The servitude non aedificandi may be created by contract or imposed by law. Town planning servitudes (servitudes d’urbanisme), imposed under the Code de l’urbanisme, restrict building rights for reasons of public interest, including protection of heritage, environmental conservation, and safety. These include servitudes de protection des monuments historiques (protecting the surroundings of listed monuments), servitudes de passage des piétons sur le littoral (coastal pedestrian rights of way), and servitudes relatives aux installations classées (relating to classified industrial installations). Town planning servitudes are not compensable in principle, under the théorie de la non-indemnisation des servitudes d’urbanisme, unless they impose an rupture d’égalité devant les charges publiques (disproportionate burden).

Compensation and Extinction

Servitudes are extinguished by the following causes: confusion (confusion, where the same person becomes owner of both the dominant and servient lands); renunciation by the owner of the dominant land; expiry of the term (if created for a limited period); destruction of the land; and non-use (non-usage) for 30 years (Article 706 of the Code civil). The 30-year prescription applies to both voluntary and legal servitudes, except where the servitude is imprescriptible by its nature. The Cour de cassation has held that the 30-year period runs from the date of the last act of exercise of the servitude.

Compensation for servitudes depends on their nature. Legal servitudes of necessity (such as the servitude de passage for landlocked properties) require compensation for the damage caused. Voluntary servitudes are compensated by the price agreed between the parties. Town planning servitudes are generally not compensable, though the owner may claim damages if the servitude deprives them of all beneficial use of their land (voie de fait or emprise irrégulière).