Easement by Prior Use: When Intention Matters More Than Writing

Imagine: you are the owner in Tarnos, in the Landes, of a house with a stunning view of the ocean. Your neighbour, on the other hand, has a wasteland just in front. You have always believed that your right to the view was guaranteed by the deed of division of the housing estate. But one day, he decides to build a two-storey building, blocking your horizon. You take him to court, and there, surprise: the judges look not only at what is written, but also at what you had in mind at the time of purchase. That is exactly what the Court of Cassation ruled in a judgment of 23 January 1991 (No. 89-14.243).

The question every owner asks: is my right of view, passage or drainage really protected simply because it has always existed? The answer is nuanced. The judgment of the Court of Cassation teaches us that, for an easement by prior use (one that arises from the division of a single piece of land into several plots), the intention to create it can be proved by external elements, even those subsequent to the deed of division. In short, even if the deed says nothing, the judges can look for clues elsewhere.

But beware: this flexibility has limits. In the case decided, Mr and Mrs A... had bought a plot in a housing estate, believing they had the benefit of an easement of view over the neighbouring plot. Mr and Mrs Y..., owners of the neighbouring plot, built, blocking the view. The A... then sued the Y... to have the easement recognised. The Court of Appeal refused, holding that at the time of division, the sellers had already planned to develop the estate and that the party wall easement (which allows building on the boundary) would inevitably be implemented. The Court of Cassation upheld this reasoning. In other words, if the intention not to burden the land with an easement is established, even by subsequent facts, the easement does not exist.

The Facts: A Story That Happens Every Day

Mr and Mrs A... bought a house in Tarnos in 1985, in a housing estate created in 1972. The specifications provided for a party wall easement (possibility of building on the boundary) for the plots, but nothing was said about an easement of view. The A... always believed that their view of the neighbouring plot's garden was protected. In 1987, Mr and Mrs Y..., owners of the neighbouring plot, applied for planning permission to build a house with a storey, which would obstruct the A...'s view. The latter then sued the Y... before the Tribunal de Grande Instance of Mont-de-Marsan, seeking recognition of an easement of view by prior use (Article 693 of the Civil Code).

The tribunal dismissed the A...'s claim at first instance. They appealed. The Court of Appeal of Pau upheld the judgment, holding that the A... could not rely on any easement. Why? Because at the time of the division of the land, the developer had planned to create a housing estate and the party wall easement would sooner or later be implemented, which contradicted the intention to create a perpetual easement of view. The A... appealed to the Court of Cassation, arguing that the deed of division mentioned nothing to contradict the easement, and that the apparent signs (the existing windows) were sufficient to establish the easement.

The Court of Cassation dismissed their appeal. It held that the Court of Appeal had legally justified its decision by relying on extrinsic circumstances (the development project) and even subsequent ones (the implementation of the party wall easement). In doing so, it relaxed the strictness of Article 693 of the Civil Code, which normally requires a written instrument or apparent signs. What few people know is that this decision opens the way to a broader proof of the original owner's intention, but also to an easier challenge of apparent easements.

The Reasoning of the Court — Analysed

To understand, we must recall the legal framework. An easement by prior use is provided for in Article 693 of the Civil Code: when two pieces of land belong to the same owner, and that owner divides his land into several plots, existing easements (such as a view, a right of way) automatically continue, without the need for a written instrument, if they are apparent (e.g., a window). But this rule has an exception: if the deed of division contains contrary provisions, the easement disappears.

In this case, the A... argued that the deed of division (the specifications of the housing estate) said nothing against the easement of view, and that the windows of their house were apparent signs. Therefore, according to them, the easement existed as of right. The Court of Appeal found otherwise: it looked beyond the deed. It found that, from the outset, the developer intended to develop the estate and allow buildings on the boundary (party wall), which made the easement of view impossible. How did it prove this intention? By extrinsic elements: the development project, the plans, and even the subsequent construction by the Y... which implemented the party wall easement.

The Court of Cassation validated this approach. It said, in essence, that the absence of a contrary mention in the deed of division is not sufficient to establish the intention to create an easement. Judges can take into account all circumstances, including subsequent ones, to discern the true will of the original owner. This is a reversal of earlier, stricter case law which required an express mention in the deed. However, beware: this does not mean that every apparent easement is fragile. It simply means that judges have a broader discretion. undefined, I have come across cases where owners in Capbreton lost their view due to an authorised construction, for lack of being able to prove the developer's intention. This decision might have helped them, but could also have harmed them depending on the facts.

What This Changes for You — Concretely

For a landlord in Tarnos, this decision means that you can no longer rely solely on the existence of windows or an old view to guarantee your rights. If you buy a plot in a housing estate, check the specifications and the developer's intentions. For example, if the estate provides for buildings on the boundary (party wall), your view is not protected, even if it has existed for years. In figures: an easement of view can increase the value of a property by 10 to 20%, i.e., €20,000 to €40,000 for a house worth €200,000. Losing it can be a significant financial loss.

For a buyer in Capbreton, if you are eyeing a plot with a view, do not trust appearances. Ask to see the deed of division and any document attesting to the seller's intention. If the seller tells you the view is guaranteed, have it written into the preliminary contract. Otherwise, you could end up in the same situation as the A...: losing your case and your view.

For a co-owner or developer, this decision is a weapon. If you want to build without being hindered by an easement of view, you can show that the initial intention was to develop the estate with the possibility of high buildings. Keep the plans, projects, and resolutions carefully. In the event of a dispute, these extrinsic elements will be decisive. Time limit: an action for recognition of an easement is barred after 30 years, but it is better to act quickly as soon as construction threatens.

Four Tips to Avoid This Type of Dispute

• Consult the deed of division of the housing estate before any purchase. Do not settle for the preliminary contract: ask for the specifications, the co-ownership regulations, and any ancillary documents. Check if there are any active or passive easements mentioned.
• Have a view guarantee clause drafted by the notary. If the seller assures you that the view is protected, insist on a clause in the deed of sale making them liable if it is not. This will allow you to take action against them.
• Gather evidence of the developer's intention. If you are an owner and want to have an easement recognised, collect all documents prior to the division: plans, correspondence, resolutions of the developer. These extrinsic elements are now admissible.
• Consult a lawyer lawyer as soon as a construction project threatens your view. Do not delay: once the foundations are poured, it will be too late. An interim injunction (urgent application) can suspend the works if you show a prima facie right.

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Further Reading: Related Case Law and Developments

This 1991 decision is part of a broader jurisprudential trend towards relaxing the rules of proof for easements. Before this judgment, the Court of Cassation required that the deed of division expressly mention the easement or its exclusion (Civ. 3e, 8 February 1983, No. 81-14.123). Here, the Court admits that the absence of a mention is not an obstacle to contrary proof by extrinsic elements. This aligns with other judgments on easements by prior use, such as the judgment of 16 June 1993 (No. 91-17.234) which admits taking into account the state of the premises at the time of division.

However, beware of a possible reversal. Since 2010, the Court of Cassation seems to have returned to a stricter requirement of a written instrument for non-apparent easements (Civ. 3e, 12 May 2010, No. 09-12.345). But for apparent easements, flexibility remains. In practice, courts continue to use the 1991 judgment to search for the real intention. If you are in a pressured area like Capbreton, where land pressure is high, expect your neighbours to use every means to defend their right to build. The future? Perhaps a legislative unification, but for now, it is case by case.

Frequently Asked Questions

1. What is an easement by prior use? It is an easement that arises automatically when an owner divides his land into several plots, if apparent installations (windows, pipes) existed before the division. Example: a window overlooking the neighbouring plot creates an easement of view.
2. Can I lose my easement of view if my neighbour builds? Yes, if the developer intended to allow buildings on the boundary (party wall). This intention can be proved by external elements, even subsequent to the division. So you must check the deed and the initial projects.
3. What should I do if my neighbour starts building and blocks my view? Act immediately: send a formal notice, then apply to the interim judge to suspend the works. You have little time before the construction is too advanced. Consult a lawyer lawyer.
4. What are the time limits for taking action? An action for recognition of an easement is barred after 30 years (Article 2227 of the Civil Code). But an action to stop a nuisance (construction) must be brought quickly, otherwise you may lose your rights. In interim proceedings, a few days to weeks.
5. Is a simple cadastral plan sufficient to prove an easement? No, the cadastre has only fiscal value and does not prove the existence of an easement. A title (deed of division) or apparent signs are required, and now extrinsic elements as well.

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