Enclave and Tolerance of Passage: When Access Suffices to Avoid a Servitude

Imagine: you own agricultural land in Pont-Saint-Esprit, in the Gard. To access it, you must cross your neighbour's plot. For years, he has let you pass without saying a word. But one day, he changes his mind and blocks your access. Panicked, you wonder if you can demand a right of way in court. This is exactly the question the Court of Cassation decided on 14 March 2024 in a case concerning plots near the Belgian border, but whose principles apply everywhere, including in the jurisdiction of Nîmes.

The question every owner in this situation asks: is a tolerated access sufficient to prevent the recognition of a legal servitude for landlocking? In other words, if your neighbour lets you pass, can you claim a definitive right? The answer is nuanced, and this decision of the Court of Cassation clarifies a key point: tolerance of passage, even if granted to the operator and not to the owner, suffices to exclude landlocking as long as it is maintained.

But beware: if the tolerance ceases, the situation changes. So, how to react concretely? This article explains everything, with examples from practice and preventive advice.

The facts: a story like any other

The case begins in 2011. Mr. and Mrs. Y. buy a plot registered as A No. 1, in the North, near the Belgian border. Their land is surrounded by neighbouring plots, including that of Mr. X., owner of plot A No. 3. To reach the public road, the Y. couple must cross several properties, including Mr. X.'s. But he refuses them passage. The Y. couple sue him to obtain a right of way (a permanent passage right) on the grounds of landlocking.

At first instance, the court rules in their favour: the property is landlocked (without sufficient access to the public road). But Mr. X. appeals. The Douai Court of Appeal, in a judgment of 28 February 2019, reverses the decision: it finds that the Y. couple benefit, in fact, from a tolerated passage from the owner of another plot, Mr. Z., which allows them to access their land via Belgium. Admittedly, this tolerance is not a definitive right, but it enables sufficient exploitation of the property. Therefore, no landlocking.

The Y. couple appeal to the Court of Cassation. They argue that the tolerated passage granted by a third party is not binding on the owner of the landlocked property and can be revoked at any time. The Court of Cassation, in its judgment of 14 March 2024, dismisses their appeal. It approves the Court of Appeal: as long as the tolerated passage is maintained, the property is not landlocked, regardless of whether the permission is given to the operator and not the owner.

In short, the judges consider that the factual situation (passing every day) suffices to exclude the right to a legal servitude, as long as the passage is not challenged. But beware: if Mr. Z. were to withdraw his permission, the Y. couple could then demand a servitude.

The reasoning of the court — dissected

The legal basis for a servitude due to landlocking is Article 682 of the Civil Code, which provides: "The owner whose property is landlocked and who has no outlet to the public road may demand a passage over the lands of his neighbours for the exploitation of his heritage." But what is a landlocked property? It is land that does not have sufficient access to the public road, whether directly or through an existing servitude.

In this case, the Court of Appeal found that the Y. couple's property benefited from a tolerated passage from Mr. Z., owner of a plot located in Belgium, allowing access to the public road. This tolerance, although precarious and revocable, was sufficient for the needs of the agricultural exploitation of the property. The Court of Cassation validates this reasoning: "The property which benefits from a tolerated passage allowing sufficient access to the public road for the needs of its exploitation is not landlocked as long as this tolerance is maintained."

What is notable is that the tolerance need not be granted personally to the owner. It can be granted to the operator, as in this case, where Mr. Z. allowed Mr. Y. (the operator) to pass. It therefore matters not that the owner has no personal right, as long as the exploitation of the property is possible.

What few people know is that this solution is in line with settled case law: the Court of Cassation has already held that a tolerated passage, even precarious, excludes landlocking (Civ. 3e, 29 April 1998, No. 96-13.595). But here, the particularity is that the permission is given to the operator, not the owner. This extends the scope of tolerance.

On the other hand, the judges recall that if the tolerance were to be withdrawn, the landlocking would re-emerge. In other words, the situation is unstable. The Y. couple would be well advised to negotiate a conventional servitude (a written agreement) to secure their access.

What this changes for you — concretely

This decision has important practical implications for owners, tenants, and real estate professionals. Here is what you need to remember according to your situation.

Owner of a landlocked property: If you benefit from a tolerated passage from a neighbour, you cannot demand a legal servitude before the court as long as this tolerance lasts. Even if the permission is precarious, the judges consider that your property is not landlocked. Example: in Bagnols-sur-Cèze, an owner of agricultural land crosses the neighbour's field every day with his tractor. The neighbour says nothing. The owner cannot obtain a judicial servitude. But if the neighbour one day closes the passage, then he can act.

Tenant or operator: The tolerance may be granted to you personally, without the owner of the land being involved. This allows you to exploit the property without having to obtain the owner's agreement. But beware: if you leave the premises, the new tenant or owner will have to renegotiate. undefined, I have encountered cases where agricultural operators found themselves blocked because the former neighbour tolerated the passage, but the new owner refuses.

Purchaser of land: Before buying, check whether the access is based on a tolerance or on a real right (servitude). If it is a tolerance, know that it can be revoked at any time. Ask the seller to regularise a conventional servitude. Example: in Pont-Saint-Esprit, a buyer purchased a house without realising that the access crossed the neighbour's garden, without title. Six months later, the neighbour erected a fence. Result: costly litigation.

Co-owner or developer: In a housing estate, accesses are generally provided for in the regulations. But if a plot has no direct access, check that a servitude has been constituted. Otherwise, you risk finding yourself in the same situation.

Four tips to avoid this type of dispute

• Negotiate a conventional servitude as soon as possible. If you benefit from a tolerance, propose to your neighbour to sign a notarial deed of right of way. This secures your right and avoids conflicts. Cost: a few hundred euros in notary fees, much less than a lawsuit.
• Have the tolerance recorded in writing. Even a simple letter or email from your neighbour confirming that he authorises you to pass can serve as proof. In case of abrupt withdrawal, you will be able to demonstrate the existence of a tolerance.
• Before buying a property, check the access. Consult the land registry and ask for a certificate from the seller on the existence of a servitude or tolerance. If the access is precarious, demand regularisation before the sale.
• In case of dispute, do not burn bridges. If your neighbour blocks your access, do not give in to the temptation to force the passage. You could be sued for trespass. Instead, apply to the judicial court to have the landlocking recognised, but only if the tolerance has ceased.

Further analysis: related case law and developments

This decision confirms a trend already initiated by the Court of Cassation. In a judgment of 29 April 1998 (No. 96-13.595), the Court had already held that a tolerated passage, even precarious, excludes landlocking. The 2024 decision goes further by specifying that the tolerance may be granted to the operator, not necessarily to the owner.

On the other hand, there is earlier case law that seemed stricter: in a judgment of 12 July 2018 (No. 17-18.853), the Court found landlocking despite the existence of a tolerated passage, on the ground that this passage was insufficient for the needs of the exploitation (in particular for heavy vehicles). The difference? It is all a question of "sufficiency" of access. If the tolerance allows normal exploitation, no landlocking. Otherwise, the owner can demand a passage.

For the future, this decision secures factual situations but encourages owners to regularise to avoid instability. Courts will likely be stricter in verifying the sufficiency of the tolerated access.

In practice: what to do

FAQ:

• Can I demand a right of way if my neighbour has let me pass for years? No, as long as the tolerance lasts, your property is not landlocked. You cannot demand a legal servitude. However, if the neighbour withdraws his permission, you can act.
• What if my neighbour blocks my access overnight? You can apply to the judicial court to have the landlocking recognised and obtain a right of way. But beware: you must prove that you no longer have any sufficient access. Gather evidence (photos, witness statements, bailiff's report).
• How much does a procedure for a right of way cost? Lawyer and expert fees can range from €2,000 to €10,000 depending on complexity. Mediation or conciliation is often cheaper and faster.
• Can a tenant benefit from a servitude? No, a servitude is a real right attached to the property, not to the person. But the tenant can use the tolerance granted by the neighbour. If the owner changes, the new owner will have to renegotiate.
• Do I need to register a servitude at the land registry? Yes, to make it enforceable against third parties (future buyers). A conventional servitude must be published with the land publicity service.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of procedure — and often much more. Book an appointment →