Right of way question

[AlexH]

Hi Everyone,

We bought our house 3.5 years ago. Our reason for buying it was the free access it provided over 16 acres for our horses. To access one of our fields, the horses go across a fenced right of way. The right of way was established 30 years ago and all animals at our place have had free access across it during that time. Up until a couple of days ago this was not a problem.

Back in February we asked a farmer who uses one of our fields if we could take it back (not a "Bail"), we explained that if he required a period of notice a year or two that would be ok with us. He said it was not important and said we could go ahead and use it from that moment. OK so far no problem. However, a couple fo weeks back brother of said farmer comes along in his tractor and starts to plough up our new paddock some 20m+ over the boundary. Out comes our plan cadastre and we resolve the matter. Ok so far.

Then I get a call to say that our horses do not have right of way over the right of way. And he begins to get aggressive. He says that they do not have the right to eat the grass on there. There quite simply is no grass since the 3 m path has been overgrown for at least 3 years with it being impassable for the last 12 months, so much so we have kept the horses out of there, until we could clear it (although our house deeds state that it is this farmer who must clear it (and maintain the fence) Also we replaced the fence which must be there (according to our deeds) at no cost to the farmer. He said we had taken an additional 2m! of land when we had only put the posts in the same holes! No he has not mentioned this since we have brought the Maire into it, but he is now insisting that we put gates up at each end of the right of way so that the horses cannot eat the non existant grass which is apparently part of his crop.

It seems clear to us he is acting our of spite, but ok we have to deal with that and find out how the law stands on it.

The Mayor was initialy on our side, but now he seems to have caved to this guy, who is well known for this behaviour according to our good neighbour of the last 3 years.

Can anyone tell me please if he has the right to demand this? And if he does who should put up the gates, us or him?

Sorry for the longwinded post, but I think maybe the full picture is requried.

The Mayor will come to see us tomorrow to explain what is going on, but I would like some idea really if it is worth taking it further via a notaire (to confirm not for a tribunal) or if we just go along with the Mayor.

thanks in advance for any input.

[AlexH]

I should maybe also add, that there is no water source in this field which means locking the horses up there is not really viable. And could potentially mean that we have to get water laid on up there at no small cost to ourselves and potentially across his right of way, which he will no doubt refuse.

:(

[parsnips]

Hi,

    I assume that the right of passage is shown in the Acte as a servitude.

    I have found answers to a particular point

:

             Normally a right of access should not be gated- if the owner of the land over which the right is exercised wishes to have gates, it is for HIM to provide them and ensure that you have means of opening them.(art. 701 code civil)   Also if he wishes to fence off the access it is again at his expense.

             This is not the type of situation that can really be solved by (expensive) court action, it needs mediation. The maire should not take sides as such, but you can ask him to act as ,or to appoint a "mediateur" to try to settle the dispute. It may be useful to discuss the legal aspects with the notaire who dealt with your purchase.

                  

[AlexH]

Hi Parsnips,

thanks for your quick reply! :)

thanks for giving a reference I can cite when I speak to the maire. I will see if I can find a printout online. May I ask if you have a link?

No, we don't to go the legal route, only to confirm our position, not to take action. We would much prefer to come to a solution if possible. We plan to move on within the next 5 years so we don't want an ongoing legal battle to drain our funds and cast a shadow over the house so to speak. We are even happy to be "bent over a bit", we do however object to being told how far, if you understand me.

Hopefully the maire will shed some light on the matter tomorrow, but would be nice to cite a piece of french law (not to mention our acte de vente) in our favour ;-)

thanks again, you have given me a starting point :-)

I'll come back as things progress...

[Clair]

http://www.droitquotidien.net/Pages%20rubriques/servitudepassage.html

google translation

[AlexH]

thanks Clair, that is really useful.

Part of the stumbling block seems to be our horses eating the grass on this piece of his property (even though there is no grass as the path has been a almost completely overgrown). Is there anything written in law about animals using a right of way on a free access basis?

Or reading on another topic a neighbour plans to gate a right of way and has had to apply for consent. Would this be the case here or is he just hoping to bully us into submission and hope to get away with it.

thanks again everyone :)

[AlexH]

Hi again,

I've been perusing various articles of law, and found this. I've google translated and it doesn't really make any more sense to me in english...my legal french is not so good, would anyone here be able to give me a better idea of what is meant please?

"De son côté, celui qui a un droit de servitude ne peut en user que suivant son titre, sans pouvoir faire, ni dans le fonds qui doit la servitude, ni dans le fonds à qui elle est due, de changement qui aggrave la condition du premier."

[AlexH]

http://www.plusmagazine.be/fr/droitargent/immobilier/artikel/18/comment-gerer-des-servitudes-/3

Hi again,

reading this, it seems that if a barrier is errected across the right of way, and goes uncontested for 30 years, the right of way becomes null and void. No wonder he wants us to put up gates!

I think there are darker motives here than simple retribution for us having taken back our field....

Can anyone comment on this? Am I interpreting correctly?

One thing is for sure, the maire can come and say his piece, we will of course listen. But we will agree to nothing there and then, without taking legal advice.

[BJSLIV]

http://www.plusmagazine.be/fr/droitargent/immobilier/artikel/18/comment-gerer-des-servitudes-/3

1 The law in Belgium may differ from France in this matter.

2 I assume that the person causing the problem owns the land over which there is this right of way.

3 Who has use of the right of way?. Does it only serve your property or do others benefit?

4 Are the terms of your use the ROW specified in a your deeds? b in his deeds?

 

[Clair]

This is how the RoW has been written in our deeds:

• we own the land.
• our neighbour has a right of way over a defined stretch of our land to access a small plot belonging to him.
• he cannot deviate from the access path.
• we cannot deny him access.
• if we want a locked gate, we must give him a key.
• access by machinery (tractor) is written in the deeds.
• access to the RoW is restricted to the person named in the deeds (i.e he cannot invite/encourage others to walk on our land).

[parsnips]

[quote user="AlexH"]Hi again,

I've been perusing various articles of law, and found this. I've google translated and it doesn't really make any more sense to me in english...my legal french is not so good, would anyone here be able to give me a better idea of what is meant please?

"De son côté, celui qui a un droit de servitude ne peut en user que suivant son titre, sans pouvoir faire, ni dans le fonds qui doit la servitude, ni dans le fonds à qui elle est due, de changement qui aggrave la condition du premier."[/quote]

Hi,

      This means that " for his part the person who has the right to the servitude(in this case -the access) can use it only in accordance with the conditions of the servitude, without being able to make, either in the land on which the servitude is granted, (ie the other proprietors land) , or on the land to which it is granted(ie the person with the right of passage's land), any changes which damage the condition of the land over which the servitude is granted (ie the other proprietor's land).

[AlexH]

Hi BJSLIV,

1. Good point in my eagerness I had not noted the "be" in the site address, nevertheless will check if similar law is in force in france.

2. No he is "locacataire" with a "Bail". He says he pays the taxes on the land and our horses our eating his grass and so costing him money. I was under the impression you could not grow crops over a right of way, since it is just that a RoW. I used to work as an admin in a PRoW office, farmer were always trying it on, I am sure french farmers are no different.

3. Only us I think, since no-one else now needs to use it.

4. Yes to the point that there is a fenced "servitude", no gate is mentioned and what or who can use it not specified. ie tractors and animals are not mentioned as prohibited nor are they expressley allowed. In his deeds? No idea.

I think the problem arises that the place we own , the original owner had 4 children. They divided up the land and this right of way would have been over a relatives land, so no problems I guess. Now since 1937 things have changed of course.

Actually at this moment, we are thinking to offer this guy back the parcelle he was using which seems to be the bone of contention. We don't have enough grazing this way, but ok, we buy in hay, which is cheaper than a legal battle. We plan to move on within 5 years anyway, 5 years of extra hay is probably still cheaper than a notaire, and somewhat less acrimonious. I hate being bullied, but looking at the bigger picture it might be better to keep the peace his way. Though we will of course still visit the notaire just to find out where we stand for any future demands from this man.

thanks again :)

[AlexH]

Hi Clair,

Unfortunately ours isn't nearly so detailed. It was written up in 1937. Ours simply says that a fence must be maintained by the owner of the land and names a couple of other parties but they no longer have need to use it, though of course I gues they still could if they wanted.

Thanks :)

[AlexH]

Hmm, thanks parsnips, so this could be the part which means that the horses can't eat the grass there? Although it is not damaging the grass, could that be construed as damaging the land?

thanks again for you help.

[parsnips]

[quote user="AlexH"]Hmm, thanks parsnips, so this could be the part which means that the horses can't eat the grass there? Although it is not damaging the grass, could that be construed as damaging the land?

thanks again for you help.[/quote]

Hi,

      I think it could be read that way, as by removing grass(fodder) it is left slightly less "advantageous" to the owner of the land (at least until the grass re-grows).