Right of way is­sues

French Property News - - Q&A -

We own the mid­dle cot­tage in a line of three at­tached prop­er­ties on a lit­tle open drive­way that runs at right an­gles to a very busy main road. The prop­er­ties on ei­ther side of us are rented, the owner of both be­ing the same French lady. The land in front of our house be­longs to us but has a ‘ droit de pas­sage’ for the third prop­erty be­yond us.

A few years af­ter we bought the prop­erty (some 20 years ago), we asked the owner of the ad­ja­cent houses if we could erect a gate with­out locks across the drive at the start of our prop­erty, at that time to keep two dogs safe. She told us that this was for­bid­den by French law.

We went to the mairie to in­ves­ti­gate and were told that we are per­fectly en­ti­tled to erect a gate across land be­long­ing to us with a right of way, as long as the owner of the prop­erty af­fected by the right of way agrees. Un­for­tu­nately, she did not, so the stale­mate has con­tin­ued.

For the first time, we have our 16-month-old grand­daugh­ter com­ing to stay with us. She is walk­ing and ad­ven­tur­ous! Given the dan­ger posed by the ad­ja­cent road we de­cided to place a tem­po­rary bar­rier – a fence-like item – across the open­ing at the start of our prop­erty. Both ten­ant neigh­bours agreed and thought it a good idea. Out of courtesy I wrote to the owner to ex­plain and have re­ceived back a let­ter threat­en­ing us with the ‘im­me­di­ate ac­tion by the po­lice and the full force of the French law’ should we use a bar­rier in this po­si­tion. In­deed, she tells us that it is our duty to su­per­vise our chil­dren prop­erly at all times. Clearly com­mon sense is not up for dis­cus­sion. We would greatly ap­pre­ci­ate your ad­vice and won­der if there is a statute that speaks in our favour? Peter and Jane Bain­bridge

Char­lotte Mac­don­ald, an as­so­ciate so­lic­i­tor at Stone King (stonek­ing.co.uk) replies: You men­tion that you have a droit de pas­sage or ‘a right of way’. In the con­text that you have de­scribed, it is likely to be a right of way for pedes­tri­ans and cars to reach your neigh­bour­ing prop­erty from the road.

A no­taire is usu­ally in­volved in the es­tab­lish­ment of a droit de pas­sage so I would sug­gest that it would be worth­while tak­ing a look at any deeds in re­la­tion to your prop­erty, as the scope of the droit de pas­sage may be de­tailed within them.

Once you have con­firmed the ex­tent of the droit de pas­sage, we would ad­vise look­ing into the mat­ter of fenc­ing. Even if your neigh­bours have a le­git­i­mate droit de pas­sage, the law has es­tab­lished that you can still en­close your land, pro­vided you do not im­pede ac­cess and that you leave suf­fi­cient space for your neigh­bours to gain ac­cess. Your rea­sons for want­ing to con­struct a tem­po­rary fence seem rea­son­able.

Al­though the courts have pre­vi­ously or­dered the re­moval of bound­aries, the rea­sons for their de­ci­sion are not sim­i­lar to your cir­cum­stances (for ex­am­ple, bound­aries erected to de­prive a neigh­bour of a view and/or sun­shine).

It is worth not­ing, how­ever, that there are some pro­tected ar­eas where the con­struc­tion of a bound­ary is not per­mit­ted with­out ex­press per­mis­sion of the mairie. In your case, you men­tion that you have checked with the mairie, and they have ad­vised there are no such re­quire­ments for this type of per­mis­sion.

As your neigh­bour does not ap­pear to want to dis­cuss the fenc­ing sen­si­bly, it may be worth­while in­struct­ing an av­o­cat (lawyer) who spe­cialises in neigh­bour dis­putes to as­sist you. They will be able to ex­am­ine the de­tails of your case care­fully and clearly set out your le­gal rights to your neigh­bour.

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