Can an easement be acquired by prescription in France?
Only easements that are both continuous and apparent, such as a view or a visible aqueduct, can be acquired by thirty years of possession (Article 690 of the French Civil Code). Discontinuous easements, including the right of way, can never be acquired by prescription, even after very long use (Article 691).
Continuous, discontinuous, apparent, non-apparent: the analytical grid
The French Civil Code classifies easements by two combined criteria. An easement is continuous where its use is or can be continual without needing any current human act: water pipes, drains, views (Article 688). It is discontinuous where it needs a current human act to be exercised: a right of way, drawing water (Article 688). It is apparent where it is revealed by external works, such as a window or a visible aqueduct, and non-apparent where no outward sign reveals it, such as a buried pipe or a no-building restriction (Article 689).
In terms of prescription (Articles 688 to 691): a view (window, balcony) or a visible aqueduct or drain, being continuous and apparent, can be acquired after thirty years (Article 690); a buried pipe, continuous but non-apparent, can only be created by title (Article 691); a right of way, even along a laid-out path, and the right to draw water, being discontinuous, can likewise only be created by title (Article 691).
| Easement | Classification | Acquired after 30 years? |
|---|---|---|
| A view (window, balcony) | Continuous and apparent | Yes (Article 690) |
| A visible aqueduct or sewer | Continuous and apparent | Yes (Article 690) |
| A buried pipe | Continuous, not apparent | No: by deed only (Article 691) |
| A right of way, even over a made-up track | Discontinuous | No: by deed only (Article 691) |
| A right to draw water | Discontinuous | No: by deed only (Article 691) |
Whether an easement can be acquired by prescription, by its nature (Articles 688 to 691 of the Civil Code)
The rule: thirty years of possession, for continuous and apparent easements only
Article 690 of the French Civil Code provides that continuous and apparent easements are acquired by title or by thirty years of possession. Both characteristics must be present: an easement that is continuous but invisible, or apparent but discontinuous, cannot be acquired by prescription.
The possession relied on must also display the usual qualities required for acquisitive prescription: continuous and uninterrupted, peaceful, public, unequivocal and exercised as the holder of the right (Article 2261 of the French Civil Code). Mere neighbourly tolerance, revocable at any time, grounds no prescription. There is no shortened prescription in this field: the period is thirty years, with no reduction for good faith or an apparently valid title.
The classic trap: a right of way can never be acquired by prescription
This is the most widespread mistake in French neighbour law: using a path over someone else's land for decades creates no right. The right of way is discontinuous, because it requires a current human act each time it is used; and discontinuous easements, apparent or not, can only be created by title, possession even from time immemorial being insufficient (Article 691 of the French Civil Code).
Two nuances should be known. First, where a passage is owed because the land is landlocked, thirty years of continuous use fix its route and manner of exercise (Article 685), but the right itself arises from the landlocked situation, not from prescription. Second, destination du père de famille can create an easement without a title where a visible sign of an arrangement existed before a single plot was divided (Articles 692 and 694), which case law accepts in particular for apparent easements on division where the deed contains no clause to the contrary.
Frequently asked questions
Does a path used for forty years give a right of way?
No. The right of way is discontinuous and can only be created by title: possession, even from time immemorial, is not enough (Article 691 of the French Civil Code). Only a written agreement, a landlocked situation (Article 682) or destination du père de famille can ground the right.
How do you prove thirty years of possession of an easement of view?
By any means: the completion date of the works, dated photographs, invoices, notarial deeds, witness statements. Possession must have been continuous, peaceful, public and unequivocal for thirty years (Articles 690 and 2261 of the French Civil Code).
Can a buried pipe create an easement by prescription?
No. Continuous but non-apparent, it does not meet the twofold condition of Article 690 of the French Civil Code: it can only be created by title (Article 691), or by destination du père de famille if a visible sign existed when the plot was divided.
Does destination du père de famille replace a title?
Yes, within its scope: Article 692 of the French Civil Code provides that it stands as a title for continuous and apparent easements. On the basis of Article 694, case law also accepts it for apparent easements on the division of a plot, where the deed contains no clause to the contrary.
Read next
- Code civil, articles 688 à 692 (Légifrance)
- Code civil, article 685 (Légifrance)
- Code civil, article 2261 (Légifrance)
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