Farm Track or Right of Way: A Decision That Clarifies Your Rights

Imagine yourself in Cannes, in the residential district of California. You buy a beautiful villa with a sea view, but to access it, you must use a narrow track that crosses your neighbour's property. Everything goes well for years, until one day that neighbour decides to install a gate and prohibit you from using it. He claims that the track is his private property and that you have no right of way. What can you do? This situation, experienced by many owners, is at the heart of a recent decision by the Court of Cassation.

The question is simple but crucial: how do you know whether a track is a simple farm track (which belongs to all neighbouring owners) or a right of way (which requires a written title)? The difference is enormous: in the first case, you have a legal right of access; in the second, you risk losing all access if you cannot prove the existence of a right of way.

In a judgment of 14 June 2018 (No. 17-20.567), the Court of Cassation gave a clear answer: the fact that there are rights of way between the plots served by a track does not in itself exclude the classification of a farm track. In other words, even if neighbouring properties have specific rights of way, the track itself can be considered a farm track, which guarantees all neighbouring owners a right of access. Let us look at this in detail.

The Facts: An Everyday Story

Mr. François Z. is the owner of a plot in Cannes, in the hinterland. To access his property, he uses a track that crosses his neighbour Mr. X's land. This track serves several plots, including Mr. Z's and Mr. X's. For years, everyone uses it without issue. But one day, Mr. X decides to close the track with a gate, preventing Mr. Z from passing. Mr. Z sues to have his right of way recognised.

Mr. Z relies on two legal grounds: first, the existence of a right of way (a real property right allowing passage over another's land); second, the classification of a farm track within the meaning of Article L. 162-1 of the Rural and Maritime Fishing Code. This article defines a farm track as a track that serves several plots and is used by the neighbouring owners. It provides that any neighbouring owner has the right to use this track without having to prove a particular title.

The first instance court rules in favour of Mr. Z and orders Mr. X to remove the gate. Mr. X appeals. The Aix-en-Provence Court of Appeal reverses the judgment: it holds that the track cannot be a farm track because rights of way exist between the plots. In its view, the existence of rights of way excludes the classification of a farm track. Mr. Z appeals to the Court of Cassation.

The Court of Cassation quashes the appeal judgment. It recalls that Article L. 162-1 of the Rural Code does not make the classification of a farm track conditional on the absence of rights of way between the plots served. In clear terms, a track can be both a farm track and burdened with rights of way. The two concepts are not incompatible. The case is referred to the Montpellier Court of Appeal for re-examination in light of this principle.

The Court's Reasoning — Analysed

To understand the judgment, we must revisit the applicable texts. Article L. 162-1 of the Rural Code provides: "Farm tracks and paths are those used for communication between various plots or for their exploitation. They are presumed to belong to the neighbouring owners, each in proportion to his ownership right in the plot." This text creates a presumption of co-ownership of the track among the neighbours. Each neighbouring owner has the right to use the track without having to prove a title. In contrast, a right of way is a real right that allows an owner (the dominant tenement) to pass over another's land (the servient tenement). It can only be acquired by title (notarial deed) or by virtue of the destination of the family head. Prescription (adverse possession) is impossible for rights of way, as the judgment recalls.

In this case, the Court of Appeal had considered that the existence of rights of way between the plots served by the track prevented the classification of a farm track. The Court of Cassation censures this reasoning: "The existence of rights of way between plots served by a track is not, in itself, exclusive of the classification of a farm track." In other words, the same track can be both a farm track and support rights of way. Rights of way are particular rights that add to the common right of the farm track, without extinguishing it.

In doing so, the Court of Cassation confirms consistent case law: the classification of a farm track is based on the use of the track for communication between plots or their exploitation, irrespective of the existence of rights of way. It rejects the idea that rights of way absorb the farm track. However, this does not mean that all tracks are farm tracks. It must be shown that the track actually serves several plots and that the neighbours use it as such. undefined, I have encountered cases where owners claimed a farm track when the track was private and served only one plot. The distinction is often subtle.

What This Changes for You — Practically

This decision has important practical implications for owners, purchasers and property professionals. Here is what to remember according to your profile:

• Neighbouring owner of a track: If you use a track to access your property, you can invoke the classification of a farm track even if your neighbours have rights of way. This saves you from having to prove the existence of a written title. For example, in Mougins, if you access your villa via a track that serves three other properties, you have the right to use it, even if one of the neighbours has a notarial right of way. The track remains a farm track.
• Owner wishing to close a track: Do not attempt to block a track used by several neighbours unless you are sure of your right. If the track is classified as a farm track, you cannot prohibit access. A gate may be ordered to be removed, with damages to pay. Example: in a similar case, the owner had to pay €5,000 in damages and €2,000 in legal costs.
• Property purchaser: Before buying a property, check the status of the access track. If the track is private and you only have a right of way, ensure that it is properly included in the sale deed. Otherwise, you risk being left without a right of way. In Cannes, a lack of title can cost you access to your property.
• Tenant: Even if you are a tenant, you benefit from your landlord's right of way. If the track is a farm track, you can use it freely. In case of conflict, inform your landlord, who must take legal action.

Four Tips to Avoid This Type of Dispute

• 1. Check the title deeds: Before buying or building, consult the land registry and notarial deeds to know the status of tracks. Look for mentions of rights of way or farm tracks.
• 2. Record the condition of the premises: If you use a track, take photos, neighbour testimonies, and keep maintenance invoices. These elements can prove the use of the track as a farm track.
• 3. Negotiate a contractual right of way: If the track is not a farm track, have a right of way inserted in the sale deed or by a separate deed. This will avoid future disputes.
• 4. Consult a lawyer lawyer: In case of conflict, do not attempt a unilateral solution (installing a gate, cutting down a tree). A lawyer will help you classify the track and take the right steps.

Further Reading: Related Case Law and Developments

This judgment is part of a line of decisions favourable to the classification of farm tracks. For example, in a judgment of 13 March 2013 (No. 11-27.529), the Court of Cassation had already held that the presence of rights of way does not exclude the classification of a farm track. The 2018 decision confirms and clarifies this position. However, some Courts of Appeal still resist, considering that rights of way "absorb" the track. The Court of Cassation calls them to order. This trend is reassuring for neighbouring owners: it protects their right of access without requiring a title. In the future, we can expect courts to be more inclined to recognise farm tracks, even in the presence of rights of way. However, each case is unique and depends on the facts. Proof of use of the track by several plots remains essential.

Frequently Asked Questions

• What is the difference between a farm track and a right of way? A farm track is a track that serves several plots and is presumed to belong to the neighbours. A right of way is a real right that allows an owner to pass over another's land, and it must be established by title. A farm track does not require a title for use by the neighbours.
• Can I close a track crossing my property if I am the sole owner? If the track is a farm track, you cannot close it because it belongs to all neighbours. If it is a private track, you can close it, but you must respect any existing rights of way.
• What are the time limits for legal action? The action to recognise a farm track is imprescriptible (no time limit). However, the action to claim a right of way is subject to a 30-year limitation period. It is advisable to act as soon as the conflict arises.
• How much does a procedure cost? Legal fees vary depending on complexity. For a track dispute, expect between €2,000 and €5,000 at first instance, plus possible expert fees. A 30-minute preventive consultation with Maître Zakine at €45 can save you much higher costs.
• What if my neighbour installs a gate without my consent? Apply to the judicial court in summary proceedings to obtain removal of the gate. You can also claim damages for disturbance of enjoyment. Consult a lawyer promptly.

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