4 Points on Landlocked Properties and Easements in Real Estate Law

In the field of real estate law, landlocked properties often pose unique challenges, frequently requiring the expertise of a dedicated attorney.

The Right of Access to one's Property and Servitudes

4 Import points

Definition of an Enclave
An enclave is a property that does not have direct access to public roads. In these cases, the right of access becomes a major issue.

Easements of passage
To resolve the problem of enclaves, the law provides for right of way. This allows the landlocked owner to access their property.

What is an Servitude?
An easement is a charge imposed on land, the “servient land”, for the benefit of another land, the “dominant land”. It can be established by law, by agreement between the parties (conventional servitude) or by prescription. In the case of a conventional easement, the owner of the servient land is generally entitled to compensation, unless the easement is established by prescription.

1. The right of access to one's property and easements

The legislation provides for easements of way to remedy this situation, allowing landlocked owners to access their property. The servitude is a charge imposed on a fund, called a “servient fund”, for the use and utility of another fund, called a “dominant fund”.

 This charge can be established:

 by will of the parties (conventional servitude): in this case, the owner of the servient fund is entitled to a compensation, unless the easement is established by prescription.

• by prescription
• by the law,

 The right of passage: A practical case of servitude

 A right of way is the most common example of an easement. It allows an owner whose land is landlocked, that is to say without access to public roads, to pass through neighboring land. This right is crucial to guarantee access to essential goods and facilitate movement.  

Me Zakine had to deal with a very specific case linked to an enclave created voluntarily by a developer on a plot belonging to his client.

Practical case 

 

In fact, his client, Mr. X, had been passing through three plots of land for 20 years to reach his property. The first owner had left a piece of his plot open so that Mr. Zakine's client could access it and reach his property by following the path that had become a easement path over which he has always had a right of way. Evidence of servitude and right of way can be seen from aerial photographs and from what emerges from the report drawn up by the expert surveyor. But then a developer decided to enclose his property by forming an alliance with one of the neighbours over which Mr X had been passing for over 20 years. By forming an alliance, the developer and the neighbour no longer allowed Mr X to pass through their plots because they had blocked access with a barrier.

 On the other side of Mr. X's plot, the developer acquired a very small plot from the town hall just to be sure that Mr. The very small plot constitutes what we call a lock plot or padlock plot, intended to encircle Mr. X's plot from all sides. 

Me Zakine's client therefore no longer has any possibility of accessing his property because on the one hand, this locked plot is an obstacle and on the other side, it is a stream which could not even be developed because it is a protected area, considered as such by the Municipality's PLU.

Why all this strategy on the part of the promoter?

 To be able to create a subdivision and have Mr.

As such, the developer obtained a permit to develop this from the Municipality, through an administrative decision.

 So what did Mr.

 First procedure before the Judicial Court in summary proceedings (before the emergency judge) due to the impossibility of accessing his plot: action for manifestly unlawful disturbance

 Second procedure on the merits before the Judicial Court (before the trial judge) to obtain damages up to the value of the land by initiating an action for abnormal neighborhood disturbance

 Third procedure before the Administrative Court: free appeal against the administrative decision having granted the development permit (permit to develop the land which will precede the building permit).

Then Mr. request before the Administrative Court due to the rejection decision made following the voluntary appeal.

 Fourth procedure before the Administrative Court: request for interim suspension intended to obtain the suspension of the development project while the Administrative Court rules.

 Mr. Me Zakine stands by his side and accompanies him in each of these procedures.

2.  Network easements

In addition to rights of way, the network easement is another important form of easement in property law. It concerns the installation and maintenance of water, electricity or telecommunications networks on third party property. These easements, often continuous, require particular attention to guarantee respect for the rights of all parties involved. 

The problem is that sometimes, in the event of resale of a house or land, the Notary forgets to transcribe the easement which was indicated in the previous deed of sale so that the neighbors do not know that they must their neighbors a network easement. 

It is therefore advisable to go to the mortgage registry to search for previous authentic sales deeds, go back in time, and check whether the easement was planned.

Once it is provided for in a title, that is to say the deed of sale, it becomes incontestable and the neighbors can no longer refuse its use.

Practical case 

 Me Zakine had to deal with this question in the Var at the level of a geographical area which had been fragmented so that the network easements no longer appeared distinctly. 

It was therefore necessary to carry out research at the plot level throughout the area to find out whether easements were provided for in the deeds. 

This is how, by carrying out this research, his client was able to avoid a long and costly procedure to the extent that the existence of an easement could be revealed. 

All that was needed was to produce the evidence to the neighbors, negotiate and explain that they could no longer refuse. Me Zakine's client was not forced to take legal action and avoided many years of proceedings for an issue which was rather simple to resolve!

 

3. Litigation and resolution of conflicts related to easements

Disputes over right of way are common, often due to disagreements over the location or use of the way. These disputes are generally resolved by the courts, which are based on analysis of titles, historical usage, and practical necessity. 

These easements, defined by the court, can be either continuous or discontinuous. Continuous servitude does not require the constant act of man to be exercised while discontinuous servitude, like a right of passage, requires human action.

4.The Lawyer at the heart of the Legal process

 Real estate law, with its enclaves, easements and rights of way, is an area where the professionalism and expertise of a lawyer such as Maître Cécile Zakine are essential. Its ability to navigate these complex legal waters, by listening and defending the interests of her clients, makes her a valuable ally in any real estate matter.

 The intervention of a lawyer such as Maître Zakine is essential in the negotiation or contestation of these easements.

Its role consists of advising on the rights and obligations of each party, drafting the necessary legal documents, and representing the interests of its clients before the judicial and/or administrative courts if an appeal proves necessary.