Dream Properties Dordogne

Often a vendor has a property for sale that sits on a parcel of land with ‘right of way’ issues.

Typically these are :

1. An access way for the farmer/vendor selling.

2. An access way for a third party.

3. A new access will need to be created as a consequence of the sale.

4. Right of access to properties roofs and walls, when they sit on boundary line (regulated under civil code)

5. Ancient rights, such as right to draw water.

The most important point of all is to never assume anything. Always be looking for the issue. On site, think or ask - ‘where does that lane or track go to’ ? ‘Who is likely to have been passing over, or will need to pass near to or over the property site in the future’? The task is now to satisfy all of the issues that drop out of the above. Do net let go, as these issues will never go away if they are not resolved to the satisfaction of the client, vendor and any third party involved you are exposing our office to problems in the future. Any issue needs to be raised, and agreed in principle before first contract, and finally documented in the ‘acte authentique’.

Often there are old ‘rights’ that previous purchasers or successors have allowed to be transferred and over a period of time these seem trivial or irrelevant now (or perhaps no longer significant) as the issue has gone away. For example, rights to old ‘lavoirs’ (washing pools) (before the days of washing machines), rights to ‘pressoirs’ (cider presses), rights to wells and even rights to ‘bring one beast, on a tether across the land twice a year’ ! (yes seriously).

In these vague cases, let the client decide, but our role is to make them aware of the issues. Only they can decide, but you may find yourself in the middle of a delicate situation. For example, when an English client is adamant he will not buy until the right of access for 3 locals of the village, to come and do their washing in the lavoir (noted in the deeds of the property), that was removed (or has dried up) many years ago, you will end up hassling the notaire, the vendor and distant relations, who may now live miles away and have no interest in trekking to the region to sign a piece of paper giving up rights they never knew they had !

Slightly less vague is the ‘well’ issue. Many rural farmers still use, and exercise their rights of access and use of well water. Be very aware of this one. They may only exercise the rights when they need it. That is normally drought time or summer when the cattle drink more. Just imagine, your client is on holiday enjoying the barbecue, when when the big red tractor, pump, noise and dustturns up. Also he has just driven his tractor with great big sods of mud all over the lovely new gravel put down the day before !!!!! Establish the issues right at the start and avoid this problem later. We have also had rights to wells with specific clauses about the method of extraction, (bucket, hand pump, or motor) and timing of access (when, how often, how much water). We know of one farmer who retained his right of access after selling the property, and he now arranges on a regular basis for a commercial tanker to turn up for two hours with engine running and extract 10 000 litres to use elsewhere.

Other issues to consider

In areas where ‘remembrement’ of land is taking place (regrouping and rationalisation of land) no new rights of way can be agreed unless the new right of way is only across the same owners land. In other words, no local ‘trade off’ or deal can be made with adjacent farmers. Therefore do not assume a solution will be found in these circumstances. For the purpose of taking on a property, assume that a solution will not be found and that the right of way will continue to be exercised. On many occasions Dream Properties Dordogne have sold properties with rights of way maintained. It really depends on individual circumstances.

Remember that if a right of way is removed and to compensate another parcel of land is to be purchased, a new access may need to be created and these issues will raise issues of who is to pay and invariably there will also be fencing and ‘bornage’ issues as well. Also be aware that if a boundary line is along the back of a building, the likelihood is that there will be a ‘droit d’echelle’, which is a right to maintain walls and roof from that ladder. Be aware that when conducting ‘bornage’ in order to ensure that in the future, your client can make openings (or even show them on a planning application), make sure that any new boundary is minimum three metres away from the building.

In conclusion, the message is, be careful, ask all the questions, know all the facts and only the buyer must decide what they wish to do about specific rights.