Easement on a building lease: can the parties contract out of it?

Imagine: you own a plot of land in Lagny-sur-Marne, and you sign a building lease with a developer. In the contract, you agree that he may encumber the land with a right of way in favour of the neighbour. Later, you change your mind and refuse. Are you entitled to go back on your word? This question is often asked, and the answer is not always what one might think.

The law on building leases is somewhat special. It allows the lessee (the one who builds) to benefit from broad powers, but how far do they go? The Court of Cassation, in a judgment of 16 July 1998, settled an essential question: may the parties, by contract, set aside the statutory rules on easements? The answer is yes, but with a significant nuance.

This judgment, handed down over twenty years ago, remains a reference for all property professionals. It clarifies the boundary between matters of public policy (which cannot be derogated from) and matters left to contractual freedom. Analysis.

The facts: a story that happens every day

Originally, a property investment company (SCI Marly) owned a plot of land. It granted a building lease to another such company, SCI IRMTS. The contract provided that the lessee could create easements over the land, in particular a right of way in favour of a third party. A few years later, SCI Marly opposed the creation of this easement, arguing that the lessee did not have the right to do so without its consent.

The dispute came before the Paris Court of Appeal. It ruled in favour of SCI Marly, relying on Article L. 251-8 of the Building and Housing Code (CCH), which limits the lessee's ability to assign its rights or create easements. According to the Court of Appeal, any easement created without the lessor's consent is void.

SCI IRMTS appealed to the Court of Cassation. It argued that the Court of Appeal had disregarded the parties' contractual freedom, because Article L. 251-8 is not a matter of public policy for easements that are not indispensable to the construction. The Court of Cassation agreed and quashed the appeal judgment. It recalled that only easements necessary for carrying out the construction are matters of public policy; for others, the parties may freely derogate by agreement.

The court's reasoning — explained

The Court of Cassation relied on Article L. 251-8 of the CCH (as then in force). This provision states that the lessee under a building lease may assign all or part of its rights or create easements, but within the limits set by the contract. The question was whether these limits are mandatory or merely default rules.

The Court answered by distinguishing two categories of easements: those that are indispensable to the construction (for example, a drainage easement for wastewater) and those that are accessory (for example, a right of way to beautify the garden). For the former, the law is a matter of public policy: it cannot be contracted out of. For the latter, the parties may freely decide whether to authorise them in the lease.

In this case, the Court of Appeal had annulled the easement without verifying whether it was indispensable to the construction. The Court of Cassation therefore criticised it for disregarding contractual freedom: since the parties had provided in the lease that the lessee could create easements, that clause had to be respected, unless it was shown that the easement in question was indispensable.

This reasoning is a classic application of the principle of contractual freedom (Article 1102 of the Civil Code). It also shows that the trial judges must examine the facts carefully: an easement is not prohibited in principle; it must be assessed whether it is necessary for the realisation of the property project.

What this means for you — in practice

If you are a lessor owner (the one who grants the land on lease), this decision reminds you to be careful when drafting the contract. If you agree that the lessee may create easements, you cannot oppose them later, unless the easement undermines the purpose of the construction. Example: in Pomponne, an owner granted a building lease for an office building; the lessee wanted to create a right of way for a pedestrian path. The owner tried to oppose it, but the lease clause authorised it. Result: he had to allow it.

For the lessee (the one who builds), this case law provides security. It allows you to obtain useful easements for your project, provided the lease provides for them. However, be careful: if the easement is indispensable (e.g., connection to utilities), even without a clause, you can impose it. But it is better to include a clear clause to avoid disputes.

For the purchaser of a property burdened by an easement arising from a building lease, check that the easement was indeed authorised by the lease. If not, it could be challenged. In practice, a notary checks these points during the sale, but a review by a solicitor is prudent.

Four tips to avoid this type of dispute

• Draft a precise clause in the building lease: state clearly whether the lessee may create easements, and if so, which ones (right of way, utilities, view, etc.). Avoid overly general wording that could be contested.
• Distinguish indispensable easements from accessory ones: even if the law imposes the former, specify them in the contract to remove any ambiguity. For the latter, list those authorised.
• Have an easement survey carried out before signing: a chartered surveyor can identify existing and potential easements. This avoids nasty surprises.
• Include a control clause: for example, the lessor's written consent for any new easement, except those expressly listed. This leaves some flexibility while providing security.
• Consult a specialist solicitor: a professional can tailor the clause to your situation (land in Lagny-sur-Marne, commercial project, etc.) and avoid costly litigation.

Further reading: related case law and developments

This 1998 judgment is part of a consistent line of authority from the Court of Cassation. Already in 1994 (Civ. 3e, 23 March 1994, No. 92-17.012), the Court had held that the parties could freely organise the terms of the building lease, subject to public policy. More recently, in 2016 (Civ. 3e, 15 September 2016, No. 15-18.853), it reiterated that the lessee may assign the lease without the lessor's consent if the contract permits, confirming the strength of contractual freedom.

The trend is therefore towards broad party autonomy, limited only by the technical requirements of the construction. The courts are increasingly strict on the classification of an easement as "indispensable": they require concrete proof of its necessity (e.g., lack of alternative access, planning constraints). In future, it is expected that the courts will continue to protect contractual freedom, while penalising abuses (useless or disproportionate easements).

Summary and next steps

Key takeaways:

• Easements indispensable to the construction are matters of public policy: they cannot be contracted out of.
• Accessory easements may be freely authorised or prohibited by the contract.
• If a clause authorises easements, the lessor cannot oppose them later.

Practical checklist if you sign a building lease:

1. Check that the contract expressly mentions the authorised easements.
2. Have a survey of existing easements carried out by a chartered surveyor.
3. Consult a solicitor to validate the easement clause.
4. If in doubt about the indispensable nature, obtain a certificate from an architect or design office.

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