Myth or Reality? A Comparative Analysis of French and English Law on the Numerus Clausus of Servitudes and Easements

The numerus clausus of property rights is a fundamental principle of property law, referring to the idea that both the number and content of property rights is limited. While the principle has been considered ‘axiomatic in all mature property systems’, its origin and evolution may vary across legal systems. This paper is a comparative analysis of the most recent judicial developments on the numerus clausus principle in the context of easements and servitudes in two legal systems, England and France.

Although not explicitly setting forth the principle, the French Civil Code has been traditionally considered as entailing a numerus clausus of property rights. While the principle has not gone unchallenged during the centuries, a more recent series of decisions of the French Cour de Cassation, known as Maison de Poésie, have taken a clear stance against the principle by admitting that it is possible to create, by way of contractual agreement, a right of ‘special’ enjoyment not known to the law. Among other aspects of private law, these decisions have significantly impacted on the traditional understanding of the law of servitudes. This has been particularly evident in a recent decision of the Cour de Cassation (Aigle Blanc, 2018), where the right of special enjoyment was employed to recreate the effects of a servitude and overcome its limits, notably the unacceptable imposition of positive obligations on the servient land.

Apart from very few dissenting voices, the existence of a closed list of property rights is considered a well-established principle of English property law. Easements fall within the list of recognised interests in land, and, although their content is formally open, courts have taken precautions against their proliferation by carefully describing what requirements are necessary for their existence. Recently, however, a decision of the UK Supreme Court (Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd & Others [2018]) has reinterpreted some of these requirements in a flexible way, and recognised a new species of easement, recreational in nature, thus casting doubt on the strength of the numerus clausus principle in the system.

By exploring these similar judicial trends in England and France, and the surrounding academic debate, the paper will offer some comparative reflections on the current status of the numerus clausus principle as well as on the implications that its relaxation or abandonment may have in both legal systems.

A sandwich lunch will be available from 12.30. The meeting will begin at 1pm.