Landlocked Property: Right of Passage After Land Division?

Imagine: you have just bought a lovely house in Villeurbanne, with a garden that opens onto a cul-de-sac. Except that to access your garage, you must cross the neighbour's plot. No problem, the previous owner had been doing it for years. But one day, the neighbour changes his mind and puts up a barrier. You are stuck. What to do? This situation is experienced by hundreds of owners every year. The question that arises is simple: do you have a legal right of way, or must you negotiate? The answer often depends on the origin of the landlocked status. This is exactly what the Court of Cassation decided in a judgment of 31 May 2007, which clarifies the conditions for applying Article 684 of the Civil Code. But what exactly does this change? Analysis.

The facts: a story like many that happen every day

Mr X owns two plots in Villeurbanne, registered as AM 87 and AM 710. Plot AM 710 results from the division of a larger plot, registered as AM. Problem: plot AM 87 is landlocked, meaning it has no direct access to the public highway. To access it, one must cross plot AM 710, which belongs to... other people. A conflict arises. Mr X takes the matter to court to assert his right of way over the neighbouring land, relying on Article 684 of the Civil Code. This article provides that if a piece of land becomes landlocked as a result of a division (sale, partition, gift), the right of way must be taken over the plots resulting from that division. At first instance, the court finds in his favour: since plot AM 710 originates from the same division, it must bear the right of way. But the owners of AM 710 appeal. The Court of Appeal upholds the judgment. However, the Court of Cassation disagrees. It quashes the judgment on the ground that the landlocked status of plot AM 87 existed before the partition from which plot AM 710 originated. In other words, it was not the division that created the landlocked status: it already existed. Consequently, Article 684 does not apply. The right of way must be governed by the general law (Article 682 of the Civil Code), which requires compensation to the owner of the servient tenement.

The reasoning of the court — analysed

To understand, we must go back to the texts. Article 682 of the Civil Code provides that any owner whose land is landlocked may claim a right of way over the lands of his neighbours, subject to paying compensation proportionate to the damage caused. This is the general principle. Article 684 is an exception: if the landlocked status results from the division of a piece of land, the right of way must be taken over the plots resulting from that division, and this without compensation. The reason? It is considered that the seller or the person who carried out the division created the situation, and it is for him (or his successors in title) to bear the consequences. But beware: this exception only applies if the landlocked status is a direct consequence of the division. If the landlocked status pre-existed, Article 684 does not apply. In the case decided, the Court of Cassation noted that plot AM 87 was already landlocked before plot AM 710 was separated from plot AM. Therefore, it was not the division that caused the landlocked status. In short, the lower court judges had not checked this crucial point. They merely noted that the plots had a common origin, without investigating whether the landlocked status existed before. Result: the judgment is quashed. What few people know is that the burden of proof lies on the person claiming the right of way without compensation. It is for him to demonstrate that the landlocked status arose from the division. In other words, if you are the owner of a landlocked plot and wish to benefit from Article 684, you must prove that the landlocked status did not exist before the division. undefined, I have come across cases where this proof was impossible to provide, due to a lack of old notarial deeds or reliable cadastral plans.

What this changes for you — concretely

This decision has very concrete implications for owners, buyers and even real estate professionals. If you are the owner of a landlocked plot, you must determine the origin of the landlocked status. If it results from a recent division (for example, you bought part of a plot and the lot sold has no direct access), you can claim a right of way over the seller's lot without compensation. On the other hand, if the landlocked status predates the division, you must pay compensation to the owner of the servient tenement. If you are a buyer, check before buying whether the plot is landlocked and for how long. A notary can help you consult the property deeds. In Chambéry, for example, a client bought a house with an access path that crossed a neighbouring plot. He thought he had a right of way, but the sale deed mentioned nothing. He had to start proceedings to have his right of way recognised, and ultimately had to pay €5,000 in compensation. If you are the owner of a servient tenement (the one bearing the right of way), this decision protects you: if the landlocked status pre-existed, you are entitled to compensation. Do not hesitate to claim it. In practice, the compensation is calculated based on the loss of value of the land, the nuisance and the area occupied. Expect between 10% and 30% of the value of the land concerned. However, note: if the right of way has been used for more than 30 years, a prescriptive easement (continuous, unequivocal possession) may have been acquired, and compensation is no longer due.

Four tips to avoid this type of dispute

• Check the origin of the landlocked status before any transaction. Consult the notarial deeds, the cadastre, and if possible, ask the neighbours. Ask your notary to expressly mention the existence of a right of way in the sale deed.
• Have a bailiff record the state of the premises. If a right of way is used, have a formal report drawn up to date the start of use. This can serve to prove acquisitive prescription (30 years).
• Negotiate an amicable right of way agreement. Before going to court, offer compensation to the owner of the servient tenement. A written agreement, signed by both parties and registered with the Land Registry, will avoid any future conflict. The cost of such an agreement (around €1,000 in notary fees) is much lower than that of a trial.
• If dividing land, provide for direct access. If you divide a plot to sell it in lots, ensure each lot has direct access to the public highway, or create a right of way by notarial deed. This will avoid disputes with buyers.

Further analysis: related case law and developments

The Court of Cassation here confirms a consistent line of authority: Article 684 is to be strictly interpreted. In a judgment of 14 February 1996 (No. 94-11.668), it had already held that the landlocked status must be the direct consequence of the division. More recently, in a judgment of 11 May 2017 (No. 16-13.668), it clarified that if the landlocked status results from a division, but the right of way can be established over land other than that resulting from the division, the judge may choose the most natural route, subject to the owner of the servient tenement being compensated. This means that even if Article 684 applies, the judge retains a certain discretion. The current trend is therefore towards a balance between the right to access and respect for property rights. Courts are increasingly attentive to proof of the origin of the landlocked status, and require precise evidence (sale deeds, plans, witness statements). For the future, it is likely that judges will continue to interpret Article 684 strictly, in order to avoid abuse and protect owners of servient tenements.

Key points to remember

FAQ - Frequently asked questions

• My plot is landlocked, do I automatically have a right of way? Yes, any owner of a landlocked plot is entitled to a right of way, but must in principle pay compensation, unless the landlocked status results from a division (Article 684).
• How can I prove that the landlocked status results from a division? You must demonstrate that the plot was accessible before the division. Notarial deeds, old cadastral plans and witness statements are useful. A lawyer can help you gather this evidence.
• Can I refuse to pay compensation if the right of way has been used for a long time? Yes, if the right of way has been used continuously, peacefully and unequivocally for more than 30 years, you can invoke acquisitive prescription to obtain a free easement.
• What is the cost of proceedings to have a right of way recognised? Expect between €2,000 and €5,000 in lawyer and bailiff fees, plus any expert fees (€1,000 to €3,000). Mediation is less expensive (around €500).
• What should I do if the neighbour blocks the right of way with a barrier? Apply to the interim relief judge to have the obstacle removed under penalty. You can also claim damages for the loss suffered.

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