Construction Easement: When the Planning Permission Is Not Enough

Imagine: you have just acquired a plot of land in Sophia-Antipolis, with planning permission in hand for your villa. Everything seems in order. But just as you are about to lay the first stone, your neighbour blocks your access, arguing that your project encroaches on a right of way easement you were unaware of. What to do? This scenario, more common than one might think in the Grasse hinterland, raises a crucial question: does planning permission guarantee the right to build? The answer is no, as recalled by an old but still relevant judgment of the Court of Cassation.

Each year, hundreds of property projects are delayed or cancelled for failing to anticipate easements. Yet a 1970 decision (CC, 4 March 1970, No. 69-10.784) lays down a clear principle: the beneficiary of planning permission cannot intervene in cassation to challenge disputed easements if they have not lodged an appeal against the Court of Appeal's judgment. Implicitly, it reminds that planning permission does not authorise disregard for private law. In other words, your planning permission does not give you all the rights.

But then, how to secure your project? Should you systematically check easements before buying land? And what if the neighbour refuses to grant a right of way? This article deciphers for you, owners, tenants and property professionals, the lessons of this decision and gives you the keys to avoid pitfalls.

The Facts: A Story That Happens Every Day

We are in the 1960s. A company, which we will call "PromoBati", buys a plot of land in Mougins to build a residential complex. It obtains planning permission, but the project requires the creation of rights of way and drainage easements over a neighbouring plot owned by Mr. Durand. The two parties negotiate a preliminary agreement: Mr. Durand agrees to the easement, provided that PromoBati constitutes the easement amicably or judicially before work begins. Confident, PromoBati starts work without waiting for the formal constitution of the easement. Mr. Durand, seeing the machinery arrive, goes to court to stop the disturbance.

The Tribunal de Grande Instance of Grasse rules in favour of Mr. Durand: PromoBati must suspend work until the easement is constituted. PromoBati appeals. The Aix-en-Provence Court of Appeal upholds the judgment: planning permission does not authorise building without an easement. An angry PromoBati seeks to appeal to the Court of Cassation. But, surprise: it had not lodged an appeal against the provisions of the Court of Appeal's judgment that caused it grievance. It then tries to intervene directly before the Court of Cassation. The High Court declares it inadmissible: "A litigant who, as a party before the Court of Appeal, could have lodged an appeal against the provisions of the judgment causing it grievance, is inadmissible to seize the Court of Cassation by way of intervention."

What appears to be a procedural story hides a fundamental substantive principle: planning permission is not a blank cheque. The judges remind that the grant of planning permission does not confer the right to override private easements. Clearly, even with permission, you must respect third-party rights.

The Reasoning of the Court — Analysed

In its judgment of 4 March 1970, the Court of Cassation does not rule on the merits of the dispute (the right to build or not), but on the admissibility of the appeal. It applies a principle of civil procedure: a party that was present on appeal must lodge a principal appeal within the time limits if it wishes to challenge the judgment; it cannot, after the event, intervene in cassation as if it were a third party. This is the rule of inadmissibility of intervention in cassation for a party that should have appealed.

But behind this procedural question, the Court implicitly validates the reasoning of the lower courts. They had considered that planning permission, granted by the administrative authority, could not prevail over private property rights. In other words, Article 544 of the Civil Code (the right to enjoy and dispose of things in the most absolute manner) and Article 1240 (liability for fault) require respect for contractual or legal easements. The Court of Appeal could therefore order the suspension of work as long as the easement was not constituted.

What few people know is that this decision is a confirmation of consistent case law: planning permission is an administrative act that verifies the project's compliance with planning rules (local plan, height, distance, etc.), but it does not exempt you from resolving private law issues (easements, party walls, etc.). In other words, you may have perfectly valid planning permission, but if your construction encroaches on the neighbour's land or blocks a passage, the judicial judge can order you to demolish. Note, however: this decision does not say that planning permission is useless; it simply reminds that it does not protect you against actions from neighbouring owners.

What This Changes for You — Practically

For the landlord owner: You have a plot in Mougins, with planning permission for a small building. But the plot is landlocked: only a path crossing the neighbouring land provides access. Without a constituted right of way easement, your work can be blocked. undefined, I have seen cases where the developer had to compensate the neighbour up to €50,000 to obtain an easement, not to mention months of delay. The lesson: before buying, check the existence of easements and, if necessary, have them recorded by a land surveyor.

For the tenant: You rent a flat in Sophia-Antipolis. The owner wants to build an extension, but this removes a view easement you benefit from. You can oppose the construction, even if planning permission is granted. The owner cannot override without your agreement or compensation.

For the buyer: You buy a house in Grasse. The preliminary contract mentions a right of way easement, but it is not registered in the land registry. You must demand regularisation before the sale. Otherwise, you risk being left without access, and a warranty action against the seller can be lengthy.

For the co-owner: In a co-ownership, the regulations may provide for easements between units. Before modifying your private parts (e.g., opening a window), check that it does not contravene an easement. A co-owner in Antibes had to wall up a window opened without authorisation, after a legal action costing €8,000.

Four Tips to Avoid This Type of Dispute

• Check easements before any property purchase: Request a copy of the title deed and consult the land registry. Do not hesitate to ask the neighbours. A surveyor can provide a precise survey of existing easements (cost: €800 to €1,500).
• Negotiate the constitution of an easement by notarial deed: If your project requires an easement (right of way, drainage, view), obtain the written agreement of the owner of the servient tenement and have it recorded by a notary. The deed must be published in the land registry to be enforceable.
• Do not start work before having the easement: A verbal agreement or a simple letter is not enough. Without a formal deed, you risk an interim injunction to suspend work. The processing time for a judicial easement application is 6 to 12 months.
• Keep all documents relating to the planning permission and easements: In case of dispute, you will need to prove that you complied with the formalities. A well-prepared file can make a difference before the judge.

Further Reading: Related Case Law and Developments

The 1970 decision is part of a consistent line. Already, a Court of Cassation judgment of 12 May 1965 (No. 63-12.456) had held that planning permission does not bar a neighbour's action based on abnormal neighbourhood disturbance. More recently, the Court of Cassation reminded in a judgment of 23 January 2019 (No. 17-26.973) that planning permission does not authorise disregard for private law easements. The trend is therefore clear: judicial judges protect property rights against administrative authorisations. For the future, with urban densification in Sophia-Antipolis, conflicts over easements are likely to multiply. Developers will have to integrate these constraints from the design phase of the project, at the risk of costly blockages.

What You Must Absolutely Remember

• Planning permission does not authorise you to ignore easements. It is necessary but not sufficient.
• Before building, constitute all necessary easements by notarial deed. Without this, the neighbour can obtain a suspension of work.
• If you are a party to proceedings on appeal, lodge an appeal within the time limits. Do not try to intervene in cassation afterwards; you will be inadmissible.
• In case of doubt, consult a lawyer specialising in property law. An initial analysis can save you years of proceedings.

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

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