Hunting Right: When the Right to Hunt is Not a Real Servitude

Picture the scene: you own a vast wooded estate near Le Havre, a game-rich piece of land that you have been leasing for years to a hunter. One day, you decide to sell the property, but the buyer refuses to respect the hunting agreement you had concluded. The hunter sues you, claiming that he benefits from a real servitude attached to the land, and thus enforceable against the new owner. But is that really the case?

This question, although technical, affects hundreds of landowners every year. Can a perpetual, transferable right to hunt really burden a property? The answer from the French Supreme Court, handed down on 22 June 1976, is unequivocal: no, a right to hunt is only a personal right, which cannot constitute a real servitude. A decision that, nearly fifty years later, continues to set precedent in the courts of Rouen, Fécamp, and elsewhere.

In this article, I will explain why this distinction is crucial, what it means for you as an owner, lessor or buyer, and how to avoid the legal pitfalls that can turn a hunting agreement into a real judicial headache.

The Facts: A Story That Happens Every Day

Mr X, owner of a large forest estate in Fécamp, had granted his neighbour, Mr Y, the right to hunt on his land. The notarial deed, duly drafted, stipulated that this hunting right was granted "as a servitude" and was to "benefit the neighbouring land". For years, Mr Y hunted in peace, even maintaining the paths and hedges to encourage game.

But one day, Mr X dies, and his heirs put the estate up for sale. The buyer, a forestry company, intends to exploit the land fully and refuses to allow Mr Y to continue hunting. Mr Y then sues the company, claiming that the hunting servitude is attached to the land.

The court of first instance rules in favour of Mr Y, holding that the servitude clause was valid and enforceable against the new owner. The forestry company appeals, but the Rouen Court of Appeal upholds the judgment. The case is then brought before the French Supreme Court. It quashes the appeal ruling, on the ground that the grant of a hunting right cannot constitute a real servitude because the land for whose benefit it is granted derives no utility from it. The profit or enjoyment that this right may bring concerns only the person of the owner of the land, not the land itself.

In other words, Mr Y cannot claim a hunting servitude. He can only claim damages from Mr X's estate for breach of contract, but he cannot impose the hunting right on the new purchaser.

The Court's Reasoning — Analysed

To understand the French Supreme Court's decision, we must refer to Articles 637 and 686 of the Civil Code. Article 637 defines a servitude as "a charge imposed on an estate for the use and utility of an estate belonging to another owner". In other words, a servitude must benefit the land (the estate), not the person. Article 686 provides that owners may establish on their property or in favour of their property such servitudes as they see fit, provided they are not contrary to public policy. But again, the emphasis is on the land.

In the present case, the lower courts had considered that the game-rich nature of the La Taronnière estate (the servient tenement) and the use from a hunting perspective (the dominant tenement) were sufficient to create a servitude. But the French Supreme Court held that this reasoning was flawed. Why? Because the right to hunt provides a personal enjoyment to the owner of the dominant tenement, but does not improve the land itself. A piece of land cannot "hunt"; only its owner can.

This decision is not a reversal of precedent, but a confirmation of a strict reading of the texts. The French Supreme Court has already held, in earlier cases, that only rights that bring a direct utility to the land (such as rights of way, light, water drainage) can constitute real servitudes. Hunting, fishing, or gathering rights are, on the other hand, considered personal rights, unless they are stipulated as being attached to the person of the owner (which makes them assignable, but still personal).

The Court therefore quashed the Rouen Court of Appeal's decision, remanding the case to another court, which must apply the rule.

What This Means for You — Practically

This decision has important practical consequences for several categories of people.

For the owner-lessor: If you grant a hunting right on your land, know that this right is personal. It will not survive the sale of the property, unless the deed of sale expressly mentions it as a real charge. If you sell, the hunter cannot sue the buyer, but only you, on the basis of contractual liability. You could therefore be ordered to pay damages if you can no longer perform your contract.

For the hunter-beneficiary: You must ensure that the hunting right is either a hunting lease (a rental contract) with a fixed term, or a real servitude if you can demonstrate a utility for your land (for example, a right of way to access your own land). Otherwise, if the property is sold, you risk losing your right.

For the buyer of a property: Before buying, check the clauses of the notarial deed. If a hunting right is mentioned as a servitude, know that it could be challenged. It is better to require the seller to clear this right or to guarantee you against any recourse.

Example with figures: In Fécamp, an owner granted a hunting right for 10 years, in return for an annual fee of €1,500. After 5 years, he sells the land. The hunter loses his right and sues the seller. The court orders the seller to repay 5 years of fees (€7,500) plus €3,000 in damages for loss of enjoyment. A nasty surprise for the seller, who could have avoided it by including an early termination clause in the contract.

Four Tips to Avoid This Type of Dispute

• Draft a hunting lease contract rather than a servitude. A hunting lease is a rental contract subject to specific rules (term, termination, etc.). It protects you in case of sale, as you can provide for a termination clause in case of sale, or a guarantee clause.
• If you really want a real servitude, have it recorded in a notarial deed. But for that, the right must benefit the dominant tenement, not the person. For example, a right of way to maintain the woodland or a right to draw water for the game may be admitted.
• When selling a property, ask the seller about the existence of hunting rights. Ask to see current contracts. If a hunting right is mentioned in the deed, require its deletion or a guarantee clause.
• In case of dispute, do not overlook limitation periods. Actions relating to servitudes are prescribed after 30 years. But for personal rights, the limitation period is 5 years (Article 2224 of the Civil Code). If you are a hunter and your right is contested, act quickly.

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Further Analysis: Related Case Law and Developments

The 1976 decision is part of a consistent line of French Supreme Court cases. As early as 1848, the Court held that a hunting right could not be a real servitude (Civ., 7 February 1848). More recently, in 2012, the Court reiterated that a servitude must present a utility for the land, not for the person (Civ. 3e, 14 November 2012, No. 11-22.591).

However, a few decisions have admitted hunting servitudes in very specific cases, for example when the hunting right was inseparable from a right of way or a right of forest use. But these decisions are rare and often criticised.

The current trend is therefore towards strict adherence to the letter of Articles 637 and 686. The courts are particularly vigilant not to extend the notion of real servitude to purely personal rights. This means that, except in exceptional cases, a hunting right will never be considered a real servitude.

For the future, it is unlikely that the case law will evolve, as the distinction between real and personal rights is fundamental in civil law. A legislative reform would be necessary, but nothing is on the agenda.

In Practice: What to Do

FAQ:

1. Can I impose a hunting right on the buyer of my land? No, unless this right is constituted as a real servitude, which is almost impossible. It is better to terminate the contract before the sale.
2. What if I have bought a land burdened with a hunting servitude? You can challenge this servitude in court. But beware of costs. Consult a lawyer to assess your chances.
3. What is the time limit to act? To challenge a servitude, 30 years from its establishment. To claim damages on a contract, 5 years.
4. Can I convert a hunting right into a real servitude by having it notarised? No, the nature of the right does not change by form. Only an authentic deed can create a servitude, but only if it has a utility for the land.
5. How much does a court action cost? Legal fees vary, but expect between €1,500 and €5,000 for first instance proceedings, plus any expert fees.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →