A property owner has a right of access to their neighbours land to undertake essential maintenance, but does that rule apply to new building works?

That was the question recently considered in a case heard in the French courts, after the owner of a property located on the town of Saint-Nicolas de Port (Meurthe-et-Moselle) in north-eastern France, obtained planning permission for an extension to her property.

In order to undertake rendering works to the external face of the property the owner requested from her neighbours that she be permitted to erect scaffolding on their land, a request that was refused.

As a result, the matter ended up in the courts, with the owner seeking access on the basis of Article 809 of the civil code, which grants a property owner the right to obtain temporary access to a neighbour's property in order to undertake essential maintenance work.

This right is known as le droit de tour d’échelle, which not an formal easement, but merely the right of temporary access.

In order to be able to use it three conditions must apply:

• the works must be of an essential nature,
  
• for the conservation of an existing property,
  
• and only if it is impossible for the owner to carry out this work from their own property, even at an additional expense.

It cannot, however, be demanded for new construction works.

In this case, the question turned on whether the extension was a new building or an existing construction.

According to the evidence presented in court, there was an urgent need for the wall overlooking the terrace of the neighbour's land to be rendered in order to avoid water infiltration.

As a result, it was therefore necessary to install a temporary scaffolding on the terrace of the neighbouring land so that these works could be carried out successfully.

The judges took the view that to the extent the planning permission for the extension of the building had been obtained, the appeal against the consent having been rejected, and the works nearing completion, the extension could now be considered as an existing construction.

The judges granted the right of tour d'échelle for five days, with a court appointed bailiff appointed to check the condition of the terrace before and after the works, the costs being borne by the owner seeking the right of access.