In today's article from the "Tuesday Mornings for Construction Professionals" series, we'd like to explore the issue of right-of-way easements. A right-of-way is an easement that allows access to a public road (national, provincial, county, municipal, or even internal) by allowing passage through another person's property.
There's no doubt that every property should have access to a public road. This access can be direct (via an exit from a public road) or indirect (via a private road or an appropriate easement). A property's lack of access to a public road can thwart development plans for that property, as without access to a public road, it's impossible to obtain a zoning decision or a building permit.
Pursuant to Article 145 of the Civil Code, if a property lacks adequate access to a public road or farm buildings belonging to the property, the owner may request that adjacent landowners establish the necessary road easement for a fee . The necessary road will be constructed taking into account the needs of the property without access to a public road and with the least burden on the land through which the road will run.
This provision clearly outlines the conditions for establishing a right of way. This includes the lack of adequate access to a public road to the property or its farm buildings. It should be noted that an easement of way may be established when a given property has no access to a public road at all, or when such access exists but is inadequate given the specific factual circumstances . Inadequate access to a public road may, for example, involve the fact that, despite physical access to the public road, it is impassable due to poor technical condition. Supreme Court case law indicates that adequate access to a public road should include the ability to pass motor vehicles, unless the needs of the dominant estate, the configuration of the boundaries, the terrain, or the socio-economic interest do not justify it. In the case of properties located in urban developments, it should also be taken into account whether the property is accessible for motor vehicles, taking into account the traffic management system in force in the vicinity of the property and any resulting restrictions on access to the property (Supreme Court decision of 21 August 2019, file reference I CSK 30/19).
The establishment of a right of way easement may be established through a court . The court's decision in such a case will be constitutive. The establishment of a right of way easement may be requested by: (i) the owner of a property without access to a public road, (ii) all co-owners of such property, or (iii) co-owners holding a majority interest in the co-ownership.
In its ruling of the Civil Chamber of 24 November 2016 (ref. III CSK 394/15), the Supreme Court indicated that an application to establish a right of way easement for real estate without adequate access to a public road constitutes an act falling within the ordinary management of a common property . The consent of the majority of co-owners is required to undertake this act, and in the absence of consent, the interested co-owner may request court authorization to perform this act.
Passive legitimacy (i.e. on the part of the party that usually opposes the establishment of such an easement) in the proceedings concerning the establishment of an easement of necessary way is available to all owners and perpetual users of the real estate through which the easement will potentially be carried out.
A right of way (as a type of land easement) may also be acquired by adverse possession , but only if it involves the use of a permanent and visible facility.
A claim for the establishment of a right of way easement may also be enforced through an agreement between the parties. However, it should be noted that the declaration of the property owner establishing the easement must be submitted in the form of a notarial deed.
A right-of-way easement is established in exchange for compensation from the owner of the encumbered property. This compensation is also established even if the owner does not suffer any loss associated with the establishment of the easement.
It is worth remembering that, in addition to the remuneration itself, the owner of the property that has been granted access to a public road may be obliged to bear the costs of maintaining the equipment needed to implement it.
A change in the content or manner of execution may occur in court proceedings if, after the establishment of the land easement, important economic needs arise that justify the change.
A right-of-way easement, like any land easement, expires if it is not exercised for 10 years . Furthermore, the easement will expire if the beneficiary of the easement acquires ownership of the encumbered property.
In summary, a right-of-way easement is a crucial element that often allows for the implementation of investments on a given property. Importantly, it is the type of easement that is most easily obtained through legal proceedings (although the process can be lengthy).
Our next week's article will be devoted to changes in the law that take place even during the summer holidays – so that they do not escape your attention.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of July 25, 2022
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