During a sale, there may be forgotten easements

In a real estate sale, there may be an easement that the seller is unaware of or has forgotten but which the seller or his buyer will subsequently be required to remove.

This case exists, recalls the Court of Cassation, when an owner sells part of his property or when he sells his property to different people.

The case arose in a subdivision which was originally a plot of land belonging to a single owner. The plots having been sold, one of the buyers complained about the flow of his neighbor's rainwater onto his land. He demanded the elimination of these flows.

This is an easement that cannot be called into question, replied this neighbor installed upstream. Because, he said, the civil code provides for various kinds of servitudes, which can be established by a written "title", such as a notarial deed, or only by seniority when they have existed for thirty years in plain sight. But there also exists, he emphasized, a servitude which results from the organization of the premises carried out at the time when they belonged to the same person. It is called servitude "by destination of the father of the family" and, when one or more plots have been sold, the new owners must bear it.

The drainage of rainwater was organized as it is currently, by the former owner of the land, concluded this neighbor, and it is an easement to be respected.

But the Court of Cassation raised a difficulty in this reasoning.

All this is correct, she says, this ignored easement exists, but on the condition that it is not written to the contrary in the notary's deed of sale. However, as is very often the case, a classic clause mentioned in this case that "the seller declares that to his knowledge, there is no easement on the building", created by himself or a precedent owner.

Such a clause, explains the Court, is contrary to the existence of this servitude of the father of the family. It precisely indicates, according to the judges, that there is no easement, and therefore, this flow of water on the neighbor's downstream land is not based on any right.

Whoever benefits from it therefore risks having to delete it.

(Cass. Civ 3, 28.1.2021/19/24.254, F XNUMX-XNUMX).