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Selling part of a garden and giving up a right of way (servitude)

My neighbours want to buy part of my garden. How do we go about this? Also, as part of the deal, they will give up a right of way (servitude) they have over my entrance. How does that work?

Image: Land Surveyor’s (géomètre) boundary marker (borne). Image from https://m.constructeurs-maisons.org/borner-son-terrain-avant-de-faire-construire-AT.html

It sometimes happens that land is divided, often when property is shared out between family members, and rights of way are created which are inconvenient when properties are sold later on. This article is about how to go about sorting such a situation out.

In one recent case, part of the garden belonging to Mr. A is in front of the house that now belongs to Mr. and Mrs. X. Mr. and Mrs. X have two accesses, one of which passes in front of Mr. A’s house. Everybody is in agreement that Mr. and Mrs. X can buy part of Mr. A’s garden and that they will give up their right of way in front of Mr. A’s house.

Drawing the new boundary

The first thing to do is to take a careful look together at a rough outline of where the new boundary will be. It is very important to think about practical issues when doing so. For example, ideally in our case they would draw a straight line but this is not possible because Mr. A’s septic tank would then be on the neighbour’s land. That is totally inadvisable so there will need to be a kink in the straight line to accommodate the septic tank.

A useful site for planning this is geoportail.gouv.fr Using this site, you can see the existing parcels of land (parcelles cadastrales) and from there you can draw lines, measure surface areas etc.

The land surveyor (géomètre)

Sticking a few posts in the ground and sketching out new parcels is helpful background work but does not give legal recognition to the new boundaries. Only a land surveyor (géomètre) can do this work and make the new boundaries (limites de propriété) legally binding. This is done via a procedure known as a ‘bornage’. In such a case, new parcels of land will be created which will require measuring the new surface areas, a procedure known as ‘arpentage’. To find your local ‘géomètre’, this is the official website: https://www.geometre-expert.fr/

Evidently, this will come at a cost. The exact cost will depend upon exactly what is required and each boundary marker required entails a charge. Where a straight line can be drawn then maybe only two will be needed (or one if there is already a marker in place) but a kink in that line to accommodate a land feature or an amenity like a septic tank will mean extra markers are required. In my experience, the starting price in such a situation will be at least 1,000 euros. You will need to decide whether the cost is to be shared equally or whether one party will foot the bill. The law only stipulates that the cost is to be shared when a neighbour requests a ‘bornage’ to know the exact boundaries under article 646 of the Civil Code. Otherwise, it is a matter of agreement based on common sense.

The notary (notaire)

Land cannot change hands in France without an act signed in front of a notary (acte authentique). Drawing up a bit of paper will be insufficient and ownership of the garden will not be legally transferred. The same applies to renouncing a right of way (servitude). Usually, such a right is created in a notarial act and one is also required to remove the right. This is a really important point and is sometimes overlooked with serious consequences should you fall out, or one of the properties changes hands. If Mr. A doesn’t make sure it is done right, he will have lost part of his garden and also be unable to prevent Mr. and Mrs. X, or their buyers should they sell, from using that right of way.

The price

The bit of garden will have to be given a value. Obviously, Mr. A will want to be paid for giving up part of his land (hopefully the right of way doesn’t turn the garden into a ransom strip…). The notary can provide guidance on this, as can a local valuer. The value will very much depend upon local considerations and whether there is an open market for gardens. If the garden is buildable then the local price per m2 for constructible land will be helpful. If not then there may be some local references for price per m2 for gardens, for example a village where gardens do sell separately from houses (this is sometimes the case in villages where there are no gardens in the centre). However, often there is no real open market for gardens as such. The price per hectare, divided into m2, for agricultural land is likely to be too low to motivate Mr. A so, at the end of the day, the figure is likely to be one that satisfies both parties (valeur de convenance) rather than a market value (valeur vénale).