Exploring the complexities of private roads and access rights in france

DROIT DE PASSAGE RULES CAN SOMETIMES LEAD TO DECADES-LONG DISPUTES Rows over private roads and who can use them crop up regularly in French provincial newspapers. In Charente, for example, a

decade-long law case is still rumbling on after a chateau owner forced the owner of a house to park 500 metres away by blocking a road running over his land with boulders. In principle,

there is an automatic droit de passage once a parcel of land is surrounded with no access except over a neighbour’s land (enclavé). The extent of that droit de passage is determined by the

droit de servitude, which is negotiated between the owner of the enclosed land and the neighbouring landowner. A similar process exists if you want to modify a droit de servitude, by

widening a path to make a road, for example. Read more: How to settle neighbourhood disputes in France AGREEING IN PRINCIPLE In both cases, the law assumes that both neighbour and landowner

will act reasonably.  Only if no agreement is reached will the case be considered by courts. Guiding principles are that the access road should follow the shortest possible path between the

property with no access and a public road, but its route must also cause as little damage as possible to the land it passes over. An exception is if the surrounded land was created by the

subdivision of a property. In that case, the access road must pass over the original property, even if there are shorter options. The first step is to get agreement over the route of the

road from the neighbouring landowner, who can expect to be financially compensated for letting you build or modify a road across their land. FORMAL AGREEMENT This agreement should then be

formalised by an acte notaire, which will involve the notaire publishing the agreement so that anyone who wants to oppose it can do so. It should include details of who will use the road,

its route, why it is needed, the hours it will be used and what vehicles will be permitted. Who will pay for the road to be built and maintained will also be detailed – it is almost always

the person who has asked for the road. Usually they pay notaire fees too. The acte notaire, in the form of an acte sous seing privé or acte authentique, is signed by all parties and the

notaire and included in the legal documents of the properties concerned. If the owner of the land to be crossed does not want the road, they can argue that alternative routes exist (over

someone else’s land) or that a road would cause great damage to their property. In this case, the person wanting the road can pursue legal action via compulsory mediation and a tribunal

judiciaire if mediation does not work. Read more: Explained: How to settle disputes without going to court in France Judges will decide on the basis of the situation on the ground, estimated

damage, and local planning laws. Where the answer is not obvious, a court-appointed expert can guide the judges, favouring the shortest route and least damage principle. If judges decide

the road should be built, they will also fix the amount the landowner should be paid for having it. This amount is based on damage likely to be incurred (loss of crop land, trees, walls

being breached etc), increased noise and loss of privacy. It cannot take into account the increased value of the property served by the road.  Notaires should be able to advise on the going

rate for the area.