Right of way issues
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.