Property law

An easement is a non-possessory right to use and/or enter onto the real property of another without possessing it (Civil Code, Art. 637). It is a right in rem concerning two parties: dominant and servient estate.

Indissociable element of the dominant estate, created for its utility, it cannot be detached from it (cannot be transferred, mortgaged or seized in an autonomous and independent manner). It is transmitted by full right at the same time as the dominant estate and can be under the control of any person. Nevertheless, it can be re-purchased by the servient fund owner upon agreement from the dominant fund owner.

In theory, easements are perpetual (they can only expire under one of the expiration reasons provided for in Articles 703 to 710 of the Civil Code). This perpetual character is not, however, absolute. Firstly, easements expire when the things are in such a condition that they can no longer be used (Civil Code, Art. 703). Subsequently, unlike ownership which does not expire through non-use, easements expire after a period of 30 years of non-use (Civil Code, Art. 706). Lastly, temporary easements may be established.

An easement is an important deed as it is either a more or less significant restriction on the title (passive easement: servient estate), or it strengthens the prerogatives of the title (active easement: dominant estate). The constituent act of the easement, concerning the neighbourhood relationship, must include the methods of exercise.

Agreements of good-neighbourliness can be prepared as report, a legal relationship between two neighbouring owners. It is a wider notion than that of easement, as these agreements can be personal, temporary or unstable.

Is the easement subject to any particular formalities?



The notarised format is not a prerequisite for validity; it is also possible to draft it either privately or orally. Nevertheless, in application of Article 28 of the decree of 4 January 1955, constituent acts of easement are subject to land registration. By default, they are unenforceable by successive owners and therefore ineffective.

An agreement on good-neighbourliness which generally creates private rights is not, in theory, subject to land registration.

What is the benefit of drafting an easement by notarised deed ?


For the easement agreement to be fully effective, it must be published in the Register; a certified and notarised deed is therefore preferable. Through publication, disputes resulting from poor knowledge of easements will be avoided; relationships between neighbouring properties will be secured even when owners change.

Using the notarial service enables the use of easements in all its exercising conditions (right of way: use of roadway, conditions of maintenance and allocation of its cost, accurate plan of pipes, compensation for the owner of an encumbered property, etc.) as drafting such a deed is a complex undertaking. Aren't they causes for dispute? As regards neighbourhood relationships, the certified deed specifically details the wishes of each party (neighbours), by their translation in legal terms, therefore preventing any future problem of interpretation.

Conservation of the deed by the notary is a solid guarantee compared to a private deed which may be lost or destroyed. The cost of these deeds is extremely low considering the stakes.


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