I discovered a right of way over the lot I bought that was never disclosed — can I cancel the sale?

The burden must be non-apparent and material

Article 1560 provides that If the immovable sold should be encumbered with any non-apparent burden or servitude, not mentioned in the agreement, of such a nature that it must be presumed that the vendee would not have acquired it had he been aware thereof, he may ask for the rescission of the contract, unless he should prefer the appropriate indemnity. Three things have to hold: the burden was not apparent, the agreement did not mention it, and it was serious enough that you would not have bought the lot knowing of it. A right of way already worn into a visible track across the land is apparent, and a buyer who could see it is expected to have accounted for it.

Registration is the usual answer, and it is a hard one

The second paragraph is where most of these claims end: Neither right can be exercised if the non-apparent burden or servitude is recorded in the Registry of Property, unless there is an express warranty that the thing is free from all burdens and encumbrances. Registration is treated as notice to everyone, so a servitude annotated on the title is not concealed from you even if nobody mentioned it and you never read the encumbrances page. The escape is a written warranty in the deed that the property is free from all burdens and encumbrances, which is precisely why that clause is worth insisting on before signing.

One year, then damages only

The article sets its own clock, and it is unusually strict. Within one year computed from the execution of the deed, the buyer may bring the action for rescission or sue for damages. Once that year has elapsed, only an action for damages remains, and it must be brought within an equal period counted from the date the burden or servitude was discovered. So the rescission remedy runs from signing rather than from discovery, and a servitude that surfaces two years after the sale can no longer undo the purchase whatever the circumstances of the concealment.

Establish the two dates first

Before arguing the merits, fix the date of execution of the deed and the date you discovered the burden, because between them they decide which remedy is still open. Then assemble what the registry shows: a certified true copy of the title with all annotations, the tax declaration, and a relocation survey showing the path of the servitude on the ground. If the deed carried a warranty against encumbrances, that clause is the centre of the case; if it did not, the practical question becomes what indemnity the diminished use of the land is worth.

Related provisions

• Civil Code, Article 1560 — Non-Apparent Burdens on Realty
• Civil Code, Article 1561 — Warranty Against Hidden Defects
• Civil Code, Article 1547 — Implied Warranties (Title and Against Hidden Defects)