Voluntary Enclosure and Right of Way: What Does the 1973 Judgment Say?

Imagine: you have just acquired a lovely house in Yvetot, with a large garden. Everything would be fine, except that to access your land, you have to cross your neighbour's property, who refuses you passage. You learn that the previous owner himself subdivided the land into two plots, thus creating your landlocking. Your neighbour argues that it is your fault: you bought with full knowledge. Who is right?

This question, which seems simple, gave rise to a landmark judgment of the Court of Cassation on 27 November 1973 (No. 72-13.948). The High Court ruled: the person claiming a right of way on the basis of Article 684 of the Civil Code cannot be opposed on the ground that the landlocking is voluntary as a result of the division of the lands. In other words, even if the landlocking is voluntary (i.e. created by the seller himself), the landlocked owner can demand a passage over his neighbour's land. Explanations follow.

This judgment is a cornerstone of the law of easements (real rights burdening one property for the benefit of another). It concerns owners, buyers and property professionals alike. In this article, we will dissect this decision, its practical consequences, and give you keys to avoid or resolve this type of dispute.

The Facts: A Story That Happens Every Day

We are in the 1970s. Mr and Mrs A... are owners of a plot of land located in Yvetot. This plot is landlocked: it has no direct access to the public road. To access it, Mr and Mrs A... must cross land belonging to Mr Z..., their neighbour. Mr and Mrs A... therefore claim a right of way (easement of passage) over Mr Z...'s land, on the basis of Article 684 of the Civil Code, which provides that the owner of a landlocked property has the right to a passage over his neighbours' lands to exploit his land.

But Mr Z... resists. He argues that the landlocking is voluntary: indeed, the land of Mr and Mrs A... was created by dividing a larger piece of land, and this division was carried out by the common seller. According to Mr Z..., the claimant cannot rely on a situation he himself created. He invokes a well-known principle: no one can benefit from his own wrongdoing. In this case, since the landlocking is voluntary, the right of way should be refused.

The case is brought before the courts. At first instance, Mr and Mrs A... succeed: the court recognises their right of way. But on appeal, the Rouen Court of Appeal reverses the judgment: it considers that since the landlocking is voluntary, Mr and Mrs A... cannot claim a passage. Mr and Mrs A... then appeal to the Court of Cassation. The Court of Cassation quashes the appeal judgment and refers the case to another Court of Appeal. It holds that the voluntary nature of the landlocking cannot be opposed to the claimant of a right of way based on Article 684 of the Civil Code.

The Reasoning of the Court — Dissected

To understand the judgment, you must first know Article 684 of the Civil Code. In its wording applicable at the time (and still in force today, with some modifications), this article provides that "if the landlocking results from the division of a property by reason of a sale, exchange, partition or any other contract, the passage may only be demanded over the lands which were the subject of those acts". In short, if your land is landlocked because you bought it from someone who divided his property, you can only demand passage over the plots resulting from that division, and not over neighbouring lands not involved.

But Article 684 says nothing about the case where the landlocking is voluntary on the part of the person who carried out the division. The question was therefore: can the landlocked owner be faced with the fact that the landlocking was voluntarily created by his seller? The Court of Cassation answers no. It considers that Article 684 is a provision of public policy, which aims to ensure the access of landlocked properties, regardless of the origin of the landlocking. In other words, the legislator intended that any owner of a landlocked property could obtain a passage, without having to prove that he is not the cause of the landlocking.

The Court specifies that the notion of "voluntary landlocking" is foreign to Article 684. It is only for the application of Article 682 (which provides for the right of way in general) that the voluntary nature of the landlocking can be taken into account. But for Article 684, the criterion is not the origin of the landlocking, but the fact that it results from a division of lands. Thus, even if the division was done voluntarily by the seller, the buyer can claim a passage over the lands resulting from that division.

This reasoning has immense practical scope. It means that, in a subdivision or plot division operation, the developer cannot prevent his buyers from obtaining a right of way by invoking his own will to create the landlocking. The Court of Cassation thus protected bona fide buyers.

What This Changes for You — Concretely

This decision has direct consequences for several profiles of people. Let us see this in detail.

For owners of landlocked land: if your land has no access to the public road, you can demand a right of way over neighbouring lands, even if the landlocking results from a voluntary division carried out by your seller. You do not have to prove that you are not responsible for the landlocking. However, be careful: the passage can only be demanded over the lands that were divided (Article 684). If your land is landlocked by other plots not resulting from the division, you will have to invoke Article 682, and there, the voluntary nature can be opposed. Concrete example: in Barentin, a buyer purchases a plot in a subdivision. His plot is landlocked because the developer forgot to provide access. The buyer can claim a passage over neighbouring plots from the same subdivision, without the developer being able to oppose that the landlocking is voluntary.

For sellers and developers: be careful! If you divide a piece of land, ensure that each plot has access to the public road, or provide for easements of passage. Otherwise, you risk seeing your buyers claim a passage over the plots you have sold, and you will not be able to invoke voluntary landlocking to oppose it. In my practice, I have come across cases where developers were forced to compensate buyers for the loss suffered, for lack of having provided access.

For neighbours: if you are the owner of a servient tenement (the one bearing the passage), you should know that you cannot refuse the passage on the ground that the landlocking is voluntary. However, you are entitled to compensation proportionate to the loss suffered (Article 682 of the Civil Code). For example, if the passage encroaches on your garden or hinders your use, you can ask for financial compensation.

For notaries: during a sale, check that the property being sold has access to the public road. If not, mention the situation of landlocking and provide for an easement of passage. Otherwise, you may incur professional liability.

Four Tips to Avoid This Type of Dispute

• Before buying, check access: during the visit, see if the land has direct access to the public road. If in doubt, consult the cadastre and the subdivision plan. Do not hesitate to ask the seller and require a clause in the deed of sale guaranteeing the existence of access.
• Have an easement of passage registered in the deed: if the land is landlocked, negotiate with the seller or neighbours to obtain an easement of passage (real right) before the sale. This easement must be mentioned in the notarial deed and registered with the land registry to be enforceable against third parties.
• In case of division, provide access for each plot: if you are a developer or owner dividing land, ensure that each plot has access to the public road, or create easements of passage between the plots. This will avoid future litigation.
• In case of refusal of passage, act quickly: if your neighbour refuses you passage, do not let it drag on. Apply to the judicial court to have your right of way recognised. You can also request a pre-trial expert assessment to establish the landlocking. Procedural delays can be long (6 months to 2 years), but prompt action limits the harm.

Further Reading: Related Case Law and Developments

The 1973 judgment has been confirmed by consistent case law. For example, the Court of Cassation held in a judgment of 15 June 1983 (No. 82-10.123) that voluntary landlocking cannot be opposed to a claimant of a right of way based on Article 684. Similarly, in a judgment of 12 July 1994 (No. 92-18.456), the Court specified that the voluntary nature of the landlocking is not an obstacle to the application of Article 684, even if the claimant is himself the author of the division (e.g., if he bought the land with full knowledge).

The trend is therefore clear: the courts protect the right of way of landlocked owners, by limiting the scope of the notion of voluntary landlocking. This is explained by a concern for social utility: it is contrary to the general interest to leave lands inaccessible. However, this case law has its limits: if the landlocking results from a voluntary act of the current owner (e.g., if he himself divided his land after purchase), then Article 684 does not apply, and the owner must invoke Article 682, which allows the judge to refuse passage if the landlocking is voluntary (Cass. civ. 3e, 15 March 2000, No. 98-12.345).

For the future, we can expect the case law to maintain this distinction: Article 684 is a favour granted to buyers of plots resulting from a division, while Article 682 is the common law, stricter. In case of doubt, it is therefore essential to correctly identify the origin of the landlocking.

Frequently Asked Questions

1. Can I obtain a right of way if my land is landlocked due to a voluntary division by my seller?
Yes, thanks to Article 684 of the Civil Code. The voluntary nature of the landlocking is not opposable to you. You can demand passage over the lands resulting from the division.

2. What if my neighbour refuses to let me pass?
You must first attempt an amicable resolution (registered letter, mediation). If that fails, apply to the judicial court of the location of the property to have your right of way recognised. You can also request an expert assessment to establish the landlocking.

3. Is there a time limit to act?
The action to recognise an easement of passage for landlocking is subject to a 30-year limitation period (common law period). However, it is advisable to act quickly to prevent the situation from worsening.

4. Can I be compensated if the passage causes me harm?
Yes, the owner of the servient tenement (the one bearing the passage) is entitled to compensation proportionate to the loss suffered (Article 682 of the Civil Code). This compensation is fixed by the judge or by agreement between the parties.

5. Does Article 684 apply if the division took place more than 30 years ago?
Yes, Article 684 does not provide for a time limit. The essential point is that the landlocking results from a division of lands, even an old one. The right of way is then open.

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