In a case that was recently heard in the court of appeal sitting in Limoges, a property owner complained that their neighbour had impeded her right of way over their land by installing a fence across the access. They had also installed a heat pump and inspection chambers to a septic tank on the plot.
They claimed their right of way, which measured 2.95m wide and ran parallel to the north gable of the neighbour's barn, had been established by a deed of sale dating from 1981 between two parcels of land.
When the case was first heard in the lower court the judges rejected the claim on the grounds that there was now access to the parcel of land from the public highway, thereby removing the basis of assessment contained in the original agreement.
The complainant successfully appealed the decision, the court drawing on Article 701 of the Civil Code, which provides that the owner who supports the easement cannot do anything to reduce it or make it more inconvenient, stating: 'Le propriétaire du fonds débiteur de la servitude ne peut rien faire qui tende à en diminuer l’usage, ou à le rendre plus incommode........Ainsi, il ne peut changer l’état des lieux, ni transporter l’exercice de la servitude dans un endroit différent de celui où elle a été primitivement assignée'.
Accordingly, the court considered that even though a new public access had been created, which may have been more direct and provide easier access for vehicles, the fact remained that the complainants agreement to waive her right of way in the light of the new access had not been established, the neighbour having imposed this access upon her by construction of the fence.
The neighbour was ordered to remove the fence, subject to a daily penalty of €50 from one month of the date of the judgement.
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