Buying a rural property is a major investment that requires particular vigilance. Among the essential factors to be examined before purchasing any rural property, real estate easements occupy a central place. These legal constraints, often unknown to buyers, can considerably limit the use of the property and affect its value. Contrary to popular belief, an easement does not disappear when the property is sold: it remains attached to the property and is automatically transferred to the new owners. Understanding exactly what an easement is, its various forms and its practical implications is therefore an essential prerequisite for any project to purchase agricultural, forestry or equestrian property.
According to article 637 of the Civil Code, an easement is "a charge imposed on an inheritance for the use and benefit of an inheritance belonging to another owner". This legal definition establishes the fundamental principle of easements: they are real rights that encumber an immovable property for the benefit of another property. Legal terminology distinguishes two protagonists in this relationship: the servient estate, which refers to the property bearing the burden or constraint, and the dominant estate, which refers to the property benefiting from the advantage provided by the easement.
The real nature of easements is their essential feature. Unlike a personal right that binds individuals together, an easement is attached to the property itself, regardless of the identity of its owner. This real nature has one major consequence: when a property encumbered by an easement is sold, the easement automatically passes to the purchaser without the need for a new contract. The new buyer of the servient land will therefore have to bear the same burden as the seller, and conversely, the buyer of the dominant land will automatically benefit from the same rights. This automatic transfer explains why it is absolutely crucial to check that all easements exist before finalising the purchase of a farm or rural land.
All easements have two facets, depending on the point of view adopted. An active easement is seen from the point of view of the owner of the dominant land, i.e. the person who benefits from the easement and takes advantage of it. For example, if you own land that is enclosed and you have a right of way over the neighbouring property to access the public highway, you have an active easement. Conversely, a passive easement is said to exist from the point of view of the owner of the servient land, who is subject to the constraint and must tolerate the exercise of the right. A neighbour who has to put up with your right of way on his land therefore has a passive easement.
This distinction between active and passive easements is fundamental because it determines the rights and obligations of each party. For the purchaser of a rural property, it is essential to clearly identify whether the property benefits from active easements, which constitute an asset advantage, or whether it is subject to passive easements, which represent a burden and can depreciate the value of the property. The impact on the value of a property can be considerable: an intensive right of way across an agricultural parcel can significantly reduce its sale price, while a right of way providing access to landlocked land substantially increases its market value.
There is, however, one notable exception to this system of dominant and servient land: public easements. These specific easements, established in the general interest, do not benefit an identified dominant land but the community as a whole. Typical examples are easements relating to the passage of power lines, telecommunications networks or the protection of historic monuments.
Natural easements result directly from the natural configuration of the site and the location of the land. They arise from the laws of physics and geography, and no human intervention or agreement is required to establish them. The Civil Code recognises and organises these easements, which are naturally imposed on property owners.
The most emblematic example of a natural easement concerns the natural flow of water, governed by article 640 of the Civil Code. This fundamental text states that "the lower land is subject to the higher land receiving the water that flows naturally without human intervention". In practical terms, if your land lies below a neighbouring property, you are legally obliged to receive the rainwater and run-off that flows naturally from the higher land. This obligation applies in full to rural properties, where water issues are often crucial to farming.
The owner of the lower land may not oppose this natural flow or build structures to divert it to another property. On the other hand, the owner of the higher land cannot artificially aggravate this natural easement by discharging additional volumes of water or by concentrating the run-off. This distinction between natural run-off and artificial aggravation frequently gives rise to disputes between neighbours, particularly in rural areas where agricultural drainage works are commonplace.
Legal easements are directly imposed by law, without the need for a deed or agreement between the owners concerned. These easements were introduced by the legislator to meet public interest requirements or to regulate neighbourly relations. Their main characteristics are that they are compulsory and apply automatically: as soon as the legal conditions are met, the easement is binding on the owners, whether they wish it or not.
One of the most important legal easements in rural areas is the right of way for landlocked properties, enshrined in articles 682 to 685-1 of the French Civil Code. Where a piece of land has no access to the public highway, or where the existing access is insufficient for normal use of the property, the owner has a legal right of way over neighbouring land. This easement is a fundamental guarantee for owners of landlocked properties, who can thus obtain access without having to negotiate with their neighbours. The right of way must be established along the shortest route that causes the least damage to the land crossed, in return for payment of compensation commensurate with the damage suffered.
Planting easements, governed by article 671 of the Civil Code, also impose precise legal constraints. Any owner wishing to plant trees close to the dividing line must respect minimum distances: two metres for plantations over two metres tall when fully grown, and fifty centimetres for lower plantations. These rules, which are often overlooked when developing a rural property, can nevertheless give rise to complaints from neighbours and, if necessary, an obligation to uproot or reduce non-compliant planting.
Servitudes of view are another example of a frequently encountered legal easement. The Civil Code precisely regulates the distances that must be respected when making openings (windows, patio doors, balconies) overlooking the neighbouring property, in order to preserve everyone's privacy. Although these provisions apply mainly to residential areas, they also apply to buildings in rural areas, particularly dwellings on farms.
Conventional easements arise from an agreement between owners. Unlike natural and legal easements, which are automatically imposed, conventional easements are the result of a contract by which the owner of the servient land agrees to encumber his property for the benefit of the dominant land. This contractual freedom allows the parties to organise their neighbourhood relations according to their specific needs, within the limits set by law.
In order to be valid and enforceable against third parties, including future purchasers, a contractual easement must be set out in a notarial deed. A notary's involvement guarantees the legal certainty of the transaction, as the professional verifies that the planned easement complies with public policy and the rights of all parties. The deed must give a precise description of the nature of the easement, its basis (i.e. the part of the land to which it relates), how it is to be exercised and, where applicable, the compensation agreed.
Once the notarial deed has been drawn up, it must be published at the Service de la publicité foncière (formerly the Conservation des hypothèques). This publication formality is absolutely essential: it is the only way to make the easement enforceable against third parties, in particular successive purchasers. Without publication, the easement remains valid between the original parties, but cannot be invoked against a bona fide purchaser who was unaware of its existence. For buyers of rural property, consulting the property register at the Land Registry Office is therefore an essential step in identifying all the conventional easements encumbering the property they are interested in.
Conventional easements come in a wide variety of forms. For example, a right of way may be created by agreement along a specific route, an easement prohibiting certain buildings in order to preserve a panoramic view, an easement authorising the drawing of water from a spring, or an easement allowing the passage of underground pipes. In the agricultural context, these conventional easements play an essential role in organising the rational use of land and facilitating access to plots.
The law distinguishes between easements on the basis of their visibility, a criterion of vital importance in property sales. Apparent easements are visible external structures that reveal their existence to any attentive observer. A gravelled road running through a property, an overhead water pipe, a drainage ditch, electricity poles or a gate are all external signs that an easement exists. The apparent nature of an easement exempts the vendor from the obligation to mention it expressly in the deed of sale, as the purchaser is presumed to have been aware of it when visiting the property.
On the other hand, non-apparent easements, also known as hidden easements, have no visible external signs that allow their existence to be detected. Typical examples include a ban on building above a certain height, a buried pipeline easement, an obligation not to plant certain crops, or an underground aqueduct easement. A buyer who visits the property cannot, simply by looking around, suspect the existence of these hidden easements.
This distinction has major legal consequences for the seller. Article 1638 of the French Civil Code imposes a strict obligation on the seller to declare all non-apparent easements encumbering the property sold. Failure to comply with this obligation exposes the seller to severe penalties. A purchaser who discovers the existence of an undeclared hidden easement after the sale may take legal action to claim, depending on the extent of the easement, either outright cancellation of the sale or compensation for the loss suffered. Case law considers an easement to be of major importance when it substantially affects the use of the property or compromises the proposed acquisition.
There is, however, a limit to this legal protection for buyers: the "taking as is" clause frequently included in preliminary sales agreements and deeds of sale. For a long time, sellers tried to evade their obligation by getting the buyer to sign a clause declaring that they were buying the property as is, with all its apparent or hidden defects. However, recent case law has considerably reduced the scope of these clauses: the Cour de cassation now considers that a simple "as is" clause is not sufficient to exonerate the seller from his warranty for undeclared, non-apparent easements. The seller can only be exonerated from liability if he can demonstrate that he expressly and precisely informed the purchaser of the existence of the easement.
The Civil Code also distinguishes between continuous and discontinuous easements, depending on whether or not their exercise requires human intervention. Continuous easements are exercised without the need for an actual human act. Examples of continuous easements are the natural flow of water, an easement allowing views from an existing window, the passage of buried pipes or an easement prohibiting construction above a certain height. These easements produce their effects permanently and automatically, without any human action being required to implement them.
Discontinuous easements, on the other hand, require human intervention in order to be exercised. The right of passage on foot or by vehicle, the easement to draw water from a spring, the right to irrigate by drawing water, or the right to graze animals all require concrete action by the beneficiary. These easements are not exercised permanently, but only when the owner of the dominant land needs them and decides to implement them.
This distinction is of particular importance with regard to the methods of acquiring easements. Continuous and apparent easements may be acquired by prescription over a period of thirty years, i.e. by prolonged use over a period of thirty years, in a peaceful, public and unequivocal manner and as the owner. If a visible path has crossed a property for more than thirty years with the tacit agreement of the owner, a right of way may thus be recognised even in the absence of a written deed. On the other hand, discontinuous or invisible easements can only arise from a title, i.e. an express legal act (contract, will, judgement). This rule is designed to protect owners against the insidious imposition of charges on their property.
In the context of rural property, this distinction is of considerable practical importance. Numerous disputes arise between owners and their neighbours concerning old farm tracks or passages that have been traditionally used for decades. Whether or not these uses have given rise to an easement by prescription depends precisely on whether they are continuous or discontinuous, apparent or not.
Easements encumbering a rural property can considerably limit the possibilities for using and developing the property. An easement prohibiting all construction or limiting the height of buildings can compromise a project to extend an existing dwelling or erect new farm buildings. An easement allowing neighbours to cross your property with farm machinery on a daily basis can disrupt the operation of certain plots and restrict the possibilities for landscaping or fencing.
Easements also sometimes impose maintenance obligations that can represent a recurring financial burden. If your property is subject to a right of way, you may be required to maintain the road in a passable condition, which involves regular grading, levelling or snow clearance depending on the season. Similarly, an underground pipeline easement may require you to maintain access for technical work and not to plant trees above the structure.
Certain easements also restrict the farmer's freedom to choose crops or production methods. An environmental easement may prohibit the use of certain plant protection products, require the maintenance of hedges or grassed areas, or require specific cultivation practices. If these constraints are in line with the aims of the agricultural project, they do not pose any major problems. If they do not, they may call into question the economic viability of the proposed farm.
Easements directly affect the market value of a rural property, both upwards and downwards, depending on whether the easement is active or passive. The existence of an active easement, such as a right of way allowing access to an enclosed piece of land, significantly increases the value of the property by making it usable. Conversely, passive easements generally lead to a depreciation in the value of the property, the extent of which varies according to the nature and intensity of the constraint.
A right of way across an agricultural parcel can reduce its value by 10 to 30%, depending on the length and intensity of the right of way. If the easement encroaches on a plot that is suitable or potentially suitable for building, the discount can be as much as 30 to 50%, or even more if it prohibits all construction. Easements for pipelines, power lines or telecommunications also generate variable discounts depending on the extent of the restrictions they impose.
For the buyer, taking precise account of these easements when assessing the purchase price is therefore a major financial issue. If the existence of an easement is overlooked during negotiations, the price of the property may be overvalued, resulting in an immediate financial loss. Conversely, the identification of easements not mentioned by the vendor can be used as a negotiating argument to obtain a reduction in the price or, in the most serious cases, to abandon the purchase. Rural property professionals have valuation grids that can be used to estimate the impact of various easements on the value of a property, expertise that is particularly useful when it comes to correctly assessing the price of agricultural land.
Ignorance or ignorance of the easements affecting a property exposes the buyer to considerable legal risks. If an easement that has not been declared by the vendor is discovered after the sale, legal proceedings must be taken to obtain redress, with all the delays, costs and risks that this entails. Although case law protects purchasers acting in good faith, the process of asserting their rights remains long and complex, involving lawyers and experts for several months or even years.
Easements also frequently give rise to disputes between neighbours when the way in which they are exercised is interpreted differently. The holder of a right of way may consider that it authorises him to use heavy machinery, whereas the owner of the servient land considers that it is limited to a footpath. The beneficiary of an aqueduct easement may wish to install a large-diameter pipe, while the owner of the land crossed feels that this size is excessive in relation to legitimate needs. These disagreements often degenerate into costly and time-consuming legal disputes, which are all the more damaging when they involve neighbours who are destined to live together for the long term.
To minimise these risks, the purchaser of a rural property should carefully check all easements before making a final commitment. This preventive approach, which will be detailed in a later article in this series on rural easements, is the best guarantee against unpleasant surprises and disputes later on.
Understanding the different categories of easement and their legal implications is an essential prerequisite for any purchase of rural property. Easements, whether natural, legal or contractual, overt or covert, continuous or discontinuous, accompany the property throughout its existence and are automatically passed on to successive purchasers. Ignoring them exposes the buyer to unforeseen restrictions on use, depreciation in the value of the property and the risk of litigation.
This initial conceptual approach to easements lays the foundations for addressing the specific features of rural easements. The agricultural and rural environment has its own distinctive features, with specific easements relating to farming, water management, the passage of machinery and relations with neighbouring farms. The next article in this series will explore in detail these easements specific to rural properties, which are essential to know before acquiring a farm, forest land or equestrian property.
The Ma-Propriété.fr blog offers a wide range of practical articles covering all aspects of buying and selling rural property, for project owners who want to learn more about the rural property market. Whether you need to understand rural leases, assess land prices or master the steps involved in a purchase, these resources will help buyers and sellers make a success of their rural property projects.
