Easement of View: When the Seller Hides the Truth About Your Property

Imagine: you have just bought a beautiful house in Mont-de-Marsan, with an open view over the Landes. You dream of your mornings with coffee on the terrace, enjoying the panorama. But a few months after the purchase, your neighbour builds a wall that completely obstructs this view. And when you consult your deed of sale, you discover that the seller had stated that there were "no easements" on the property. What can you do?

This situation is not a hypothetical scenario. It happens more often than one might think in our region, where properties with views are particularly sought after, especially in Mimizan or in the residential neighbourhoods of Mont-de-Marsan. Every property owner or prospective purchaser asks this crucial question: to what extent is the seller liable when they state something false in the deed of sale?

The answer comes from an important ruling by the Court of Cassation, which clarifies the obligations of sellers and the remedies available to purchasers. This decision, handed down in 2001 but still relevant today, establishes a fundamental principle: falsely stating that there is no easement (a real right burdening one property for the benefit of another property) constitutes a contractual fault engaging the seller's liability. Let's see together what this concretely changes for you.

The facts: a story as happens every day

The story begins with Mr and Mrs Durand, owners of a house in a commune within the jurisdiction of Mont-de-Marsan. They decide to sell their property to Mr and Mrs Martin, a young couple wishing to settle in the region. In the deed of sale, drafted by a local notary, the sellers solemnly declare: "We affirm that no easement has been created on the said land and that none exists to our knowledge."

The Martins sign, move in, and begin to enjoy their new life. But a few months later, their direct neighbour, Mrs Pi, owner of an adjacent house, informs them of a problem. She explains to them that for years, she has benefited from an easement of view (right to maintain a view over the neighbouring property) on their land, created by "destination du père de famille" (a situation where the owner of a single piece of land creates an easement by dividing their property).

Mrs Pi even shows them old documents and photographs attesting that this easement existed well before their purchase. Worse still: she asks them to demolish a wall they had built, because this wall was obstructing precisely this protected view. The Martins, astonished, realise that they have bought a property burdened with an easement which the seller had nevertheless guaranteed did not exist.

What do they do? They decide to sue the sellers, Mr and Mrs Durand, in court. Their argument: the sellers committed a fault by falsely stating that there was no easement. The court of first instance rules in their favour, ordering the sellers to compensate them. But the sellers appeal, considering that they were not acting in bad faith. The court of appeal confirms the judgment, and the sellers appeal to the Court of Cassation. It is there that the Court of Cassation, on 21 March 2001, hands down the ruling that interests us.

The court's reasoning — analysed

The Court of Cassation examined the sellers' appeal with great rigour. The judges recalled a fundamental principle: when a seller states in the deed of sale that there are no easements on the property, this statement engages their liability. But on what exact legal basis?

The court relied on Article 1240 of the Civil Code (which obliges one to repair damage caused by one's fault), but also on the theory of contractual obligations. In short: a sale is a contract, and each party has obligations. The seller must in particular guarantee the purchaser against latent defects and eviction. Here, the court considered that falsely stating the absence of an easement constitutes a "contractual fault" (breach of an obligation arising from the contract).

In other words, it does not matter whether the sellers acted in good or bad faith. What matters is that they made an inaccurate statement in the deed, and that this inaccuracy caused harm to the purchaser. The court emphasised that the lower courts (the court of first instance and the court of appeal) had "sovereignly" (with discretionary power of assessment) held that all the circumstances proved the existence of the easement and the sellers' fault.

Does this reasoning mark an evolution? Not really: it confirms consistent case law. Even before, courts sanctioned false statements in deeds of sale. But this ruling strongly reiterates it, particularly for easements, which are often sources of disputes in residential areas like Mont-de-Marsan or Mimizan. The sellers' arguments — "we did not know", "it was in good faith" — do not hold up against the duty to inform that rests upon them.

What this changes for you — concretely

But what exactly does this change in your life as a property owner, purchaser, or real estate professional? Let's look at this profile by profile.

If you are a purchaser: this decision protects you. Imagine that you buy a plot of land to build on in Mimizan for €150,000, with a view over the lake. The seller guarantees you in writing that no easement burdens the land. You build your house for an additional €200,000. Then a neighbour reveals to you the existence of a right of way (right to cross your land) which makes part of your construction illegal. Thanks to this ruling, you can sue the seller for contractual fault. The damages could cover the loss in value of the property (for example €30,000), the costs of modifying the works, and even your moral prejudice.

If you are a seller: be careful! You must be extremely cautious in your statements. "To my knowledge" is not always sufficient. undefined, I have encountered cases where sellers in Mont-de-Marsan have been ordered to compensate purchasers for easements they were unaware of, but whose existence was provable by old documents. A thorough verification before the sale is essential, on pain of having to pay substantial compensation, sometimes tens of thousands of euros.

If you are a tenant: this decision concerns you indirectly. If you rent a property and discover an easement that affects your enjoyment (for example, a right of way that crosses your garden), you can inform the landlord. They can then seek recourse against their seller if a false statement was made. The time limits for taking action? Generally 5 years from the discovery of the defect, but consult a solicitor quickly.

If you are a real estate professional (agent, notary): this decision reinforces your advisory role. You must urge sellers to scrupulously verify the existence of easements, notably through a thorough title search. An oversight can lead not only to the seller's liability, but also to claims against you if your advice was deficient.

Four tips to avoid this type of dispute

• Have a complete title search carried out before any sale: entrust a notary or a specialised solicitor with examining all historical documents of the property (old deeds, cadastral plans, leases). In Mont-de-Marsan, some easements date back several generations and do not appear in recent deeds.
• Question your neighbours in writing: before selling, send them a registered letter asking if they claim any rights over your property (easements of way, view, drainage of water). Keep their response, it can serve as evidence in case of dispute.
• Consult the local urban development plan (PLU): planning easements (for example, rules on height or distance) can also affect your property. In Mimizan, some areas are subject to specific easements related to coastal protection.
• Document everything in writing: if you have a doubt about an easement, mention it explicitly in the deed of sale ("the seller indicates the possible existence of an easement of view of which they are not certain"). A negotiated price reduction is better than a costly lawsuit.

In-depth analysis: related case law and developments

This ruling fits into a consistent line of case law. Already in 1995, the Court of Cassation had handed down a similar ruling (Cass. civ. 3e, 15 February 1995, no. 93-15.217) where it had condemned a seller for falsely stating the absence of a right of way. The trend of the courts is clear: they increasingly protect purchasers against inaccurate statements, considering that the seller, as a professional or former holder of the property, is in a better position to know about any potential easements.

What few people know is that this case law also applies to co-ownerships. For example, if you sell a flat in a co-ownership in Mont-de-Marsan and you falsely state that there is no common easement (such as a right of overhang or use of common parts), you engage your liability. The courts even extend this principle to latent defects not apparent during the viewing.

For the future, one can expect a strengthening of this protection, perhaps with a stricter obligation for prior diagnostics. In a context where real estate transactions are increasingly complex, judges could impose systematic verifications on sellers, on pain of a presumption of fault.

Checklist before taking action

• If you are a seller: 1) Gather all documents relating to your property (previous deeds of sale, plans, correspondence with neighbours). 2) Consult a notary or solicitor for a title search. 3) Disclose in writing in the deed any known or suspected easements. 4) Possibly take out seller's liability insurance.
• If you are a purchaser: 1) Require from the seller a written statement on easements. 2) Have this statement verified by a professional. 3) Visit the property at different times and discreetly question the neighbours. 4) In case of doubt, negotiate a conditional clause or a price reduction.
• If you discover an easement after purchase: 1) Immediately consult a specialised solicitor (generally a 5-year time limit). 2) Gather all evidence (deed of sale, photographs, witness statements). 3) Assess your prejudice (loss of value, work costs). 4) Attempt mediation before initiating legal proceedings.
• If you are a neighbour and believe you benefit from an easement: 1) Check your title deeds and old deeds. 2) Serve a formal notice on the concerned owner. 3) Consult a solicitor to assert your rights, possibly through an action to recognise the easement.

Do you find yourself 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 →