Extinction of an Easement: When Impossibility of Use Causes the Right to Disappear

Imagine: you have just bought a beautiful house in Capbreton, with a view of the ocean. The deed of sale mentions a right of way along the garden to allow your neighbour to access his plot. So far, nothing unusual. But when visiting the premises, you notice that the passage is blocked by a party wall built twenty years ago. Impossible to get through, even on foot. Your neighbour, although entitled to this easement, has never used it. Can he still demand that you restore the passage?

This question is asked by hundreds of property owners every year. For an easement (a real right in land that encumbers one piece of land for the benefit of another) is not eternal. The Civil Code provides that it is extinguished by non-use for thirty years. But what if use has become physically impossible? Must one wait three decades to be freed from this burden?

The Court of Cassation, in a judgment of 9 July 2003, gives a clear answer: a court of appeal which finds that the things are in such a state that the easement can no longer be used in accordance with the deed (the instrument that created it) may deduce its immediate extinction, without waiting for the thirty-year period. In other words, the material impossibility of exercising the easement, when it is definitive, is sufficient to extinguish it. Analysis.

The facts: a story that happens every day

In this case, two neighbouring plots in Isère: one, the dominant tenement (the one benefiting from the easement), registered as AL 309; the other, the servient tenement (the one bearing the easement). A notarial deed of 1973 had created an easement of way and drainage for the benefit of plot AL 309, to allow access to a road and the disposal of waste water. The years passed. In 1998, the owner of the servient tenement decided to build a house. He then noted that the passage provided for by the easement was impassable: a retaining wall and old constructions completely blocked access. Moreover, the drains had never been laid. The dominant tenement remained a vacant plot, without any construction. The owner of the servient tenement then sued the owner of the dominant tenement to have the extinction of the easement declared. The Tribunal de grande instance of Grenoble upheld his claim, but the owner of the dominant tenement appealed. The Grenoble Court of Appeal, by a judgment of 7 November 2000 (rectified on 12 March 2001), confirmed the extinction, on the ground that the state of the premises made any use of the easement in accordance with its purpose impossible. The owner of the dominant tenement appealed to the Court of Cassation. He argued that the impossibility of exercising an easement only causes its extinction after thirty years of non-use, and that the Court of Appeal had not established that period. The Court of Cassation dismissed the appeal: a court of appeal which finds that the things are in such a state that the easement can no longer be used in accordance with the deed may deduce its extinction, without waiting thirty years. In short, the material and definitive impossibility of use amounts to a loss of the purpose of the easement, which deprives it of its object.

The reasoning of the court — analysed

The reasoning of the Court of Cassation is based on a subtle interpretation of the articles of the Civil Code relating to easements. The easement is defined in Article 637 as a charge imposed on one piece of land (the servient tenement) for the use and utility of another piece of land (the dominant tenement). It is created by a deed (notarial act) or by the destination of the paterfamilias. Its extinction is governed by Article 706: "The easement is extinguished by non-use for thirty years." But the Court here adds an additional cause of extinction: the physical impossibility of exercising the easement, regardless of any time limit. In other words, if the servient tenement is in such a state that the easement can no longer be exercised (for example, the passage is blocked by a wall, or the land has been filled in), and that impossibility is definitive, the easement disappears. The trial judges must establish this state of fact. In this case, the Court of Appeal had noted that the passage was blocked by a wall and constructions, making any access impossible. It deduced that the easement, which had a specific purpose (passage and drainage), could no longer be used in accordance with its deed. However, care must be taken: the impossibility must be objective and permanent. A mere temporary inconvenience is not enough. What few people know is that this solution is old: the Court of Cassation had already laid it down in 1845 (Civ., 18 March 1845). But it is recalled here forcefully, and it is often overlooked by practitioners. undefined, I have come across cases where owners thought they had to wait thirty years when the impossibility was obvious. This judgment is therefore a valuable weapon for owners of servient tenements.

What this means for you — in practice

For the owner of the servient tenement (the one bearing the easement), this decision is good news. If you have a piece of land encumbered by an easement of way or drainage, and that easement has become physically impossible (road blocked, wall built, land collapsed…), you can apply to the court for a declaration of extinction without waiting thirty years. Example: in Saint-Vincent-de-Tyrosse, an owner has a right of way along his property. In 2018, a storm caused a landslide that made the path impassable. The owner of the dominant tenement did nothing. In 2023, the owner of the servient tenement can apply to the court to have the extinction declared, even if thirty years have not elapsed. But be careful: you must prove that the impossibility is total and definitive. A mere narrowing or temporary hindrance will not suffice. For the buyer of a property encumbered by an easement, this is a point to check at the time of signing. If the easement has become useless or impossible, you can negotiate a price reduction or request its removal. For the owner of the dominant tenement, this is a wake-up call: if you do not exercise your easement and it becomes impossible, you risk losing it. It is therefore essential to use it regularly or to have its existence recorded by a recognitive deed (a notarial deed recognising the easement) every thirty years. Cost of a recognition: about €300-500 per deed, much less than a lawsuit.

Four tips to avoid this type of dispute

• Keep your title deeds and easement documents. Without a deed, you cannot prove the existence of the easement. Have them digitised and stored securely.
• Use your easement regularly. Even once a year, walk the path or have the drains checked. Use interrupts the thirty-year prescription period.
• Have a recognitive deed drawn up every 30 years. If you do not use the easement, a notarial deed recording its existence is enough to avoid extinction for non-use. It is a simple and inexpensive precaution.
• In case of impossibility, act quickly. If the state of the premises makes the easement impossible, do not let it drag on. Apply to the court to have the extinction declared. You will avoid years of uncertainty and conflicts with neighbours.

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Further reading: related case law and developments

This decision is part of a consistent line of case law. As early as 1845 (Civ., 18 March 1845), the Court of Cassation held that "the easement is extinguished by non-use, but also by the physical impossibility of exercising it." More recently, a judgment of 11 January 1995 (No. 92-21.381) clarified that the impossibility must be absolute and not relative. Thus, if the passage has merely become more difficult but remains possible, the easement subsists. The trend of the courts is therefore to protect the dominant tenement, but not to the point of maintaining an easement without object. This solution is consistent with the very nature of an easement: it is attached to the utility of the dominant tenement. If that utility disappears, the easement no longer has any reason to exist. In the future, we can expect judges to be increasingly attentive to the physical reality of the premises, especially with the rise of aerial photographs and GPS surveys that allow objective verification of the state of the land.

In practice: what to do

FAQ:

1. Can I have the extinction of the easement declared without a trial? Yes, if the owner of the dominant tenement agrees, you can sign a notarial deed of renunciation. Otherwise, you must apply to the judicial court.
2. What is the time limit for taking action? There is no specific time limit for claiming extinction due to impossibility, but you should not delay: the longer you wait, the harder it will be to prove the initial state.
3. How much does a procedure cost? Expect between €1,500 and €3,000 for a simple procedure before the judicial court, excluding lawyers' fees. A preliminary 30-minute consultation (€45) can assess the strength of your case.
4. What if the easement is mentioned in my deed of sale, but has never been used? You can claim the warranty against eviction from the seller if the easement is non-existent or extinguished. But be careful, the limitation periods are short (5 years from the sale).

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