Easement by Prior Owner's Intent: The Key Moment of the Division of the Land

Imagine: you have just bought a house in Parentis-en-Born, with a lovely garden leading to a path. To access your garage, you have always used this path – well, at least since the previous owner used it. But your new neighbour, who bought the adjacent land, decides to fence off his plot and blocks your passage. You think: 'There must be a right of way, it's obvious!' Yet, the court rules against you. Why? Because the signs of the easement (an easement is a real property right burdening one piece of land for the benefit of another) must exist at the precise moment of the division of the land, not afterwards. This decision of the Court of Cassation clarifies a crucial point: even if the lands were later reunited and then divided again, it is the date of the first division that counts. In other words, it is not enough that the signs are apparent today: they must have been apparent at the time of the initial division. What few people know is that this rule applies even if successive owners allowed the use without objection. So, how do you know if your easement is valid? This article explains everything, with concrete examples from Biscarrosse and Parentis-en-Born.

The Facts: A Story Like Many Others

Mr and Mrs S. are owners of a house in Parentis-en-Born, purchased in 2010. Their land is next to that of Mr and Mrs T., who bought theirs in 2015. The two plots were once part of the same large estate, divided in 1985 by the "father of the family" (the single owner at the time). At the time of this division, a dirt track crossed Mr T.'s plot to allow the other plot access to the road. This track was not mentioned in the 1985 deed of sale, but it was clearly visible: tyre tracks, a gate, etc. For thirty years, nobody challenged the passage. But in 2018, Mr T. decided to build a wall and blocked access. The S. couple sued to have an easement by prior owner's intent recognised (an easement created automatically upon division of a land, without a written deed, provided that apparent signs of the easement existed at the time of division).

The first instance court ruled in their favour: the apparent signs were established. But Mr T. appealed. The Bordeaux Court of Appeal reversed the judgment: it held that the apparent signs must be assessed at the date of the division, not at the date of the S.'s purchase. However, in this case, the track had been modified after the division (new surface, changed gate). The S. couple appealed to the Court of Cassation, arguing that the prior owner's intent counts as title as long as the signs existed at the time of division, even if the lands were later reunited and then divided again. The Court of Cassation dismissed their appeal: it confirmed that it is the date of the initial division that matters, not a subsequent division. In other words, if the signs had disappeared and then reappeared, the easement does not revive.

What is interesting is that the S. couple lost because they failed to prove that the track was in the same condition in 1985 as in 2018. undefined, I have come across cases where owners thought they had an easement because 'it has always been done like that', but could not demonstrate that the improvements predated the division. Result: months of litigation and significant legal fees.

The Court's Reasoning — Analysed

The Court of Cassation relies on Article 693 of the Civil Code, which provides that the prior owner's intent counts as title for continuous and apparent easements. For discontinuous easements (such as a right of way), Article 694 additionally requires a written deed. Here, it was a right of way (discontinuous), so a written deed would have been necessary, but the S. couple invoked the prior owner's intent as title. The Court reminds that, even for continuous and apparent easements, the prior owner's intent requires that apparent signs of the easement existed at the time of the division of the land. And this holds regardless of the subsequent history of the lands (reunion and then a new division).

In short, the Court clarifies that the decisive moment is the division that first separated the lands. If after this division the lands are reunited (e.g., bought by the same person) and then divided again, it is not this new division that creates the easement. One must refer back to the initial division. In other words, successive owners cannot 'recreate' an easement simply by using a passage continuously.

However, note: this decision does not change the rule for continuous and apparent easements (such as an underground water pipe) which can be created by prior owner's intent without a deed. But it reminds that the burden of proof lies on the person claiming the easement. They must demonstrate that the signs existed at the date of the division, for example through aerial photographs, old notarial deeds, or witness statements. In the S. couple's case, they failed to prove that the track was in the same condition in 1985. The Court of Appeal found that the track had been modified, and the Court of Cassation upheld this.

What many do not know is that previous case law was divided: some appeal courts considered that if the signs were apparent at the time of purchase, that sufficed. The Court of Cassation puts an end to this uncertainty: it is the initial division that counts. So this is a confirmation, not a reversal.

What This Means for You — Practically

For owners, this decision has a direct impact. If you bought land in Biscarrosse or Parentis-en-Born and you use a path or pipe crossing the neighbouring land, you need to check when the division occurred. If it is recent (less than 10 years), you may still be able to prove the apparent signs. But if it dates back 30 years, you will need solid evidence. Concrete example: you buy a house in 2020, the land was divided in 1985. The access road was paved in 1990. You cannot invoke prior owner's intent because the paving is after the division. You will therefore need to obtain a conventional easement (by notarial deed) or by prescription (continuous use for 30 years).

For buyers, this is a wake-up call: before buying a property that seems to benefit from a right of way, have a notary or specialised lawyer check the origin of the division. Ask to see the initial division deed. If nothing is mentioned, negotiate a price reduction or require the seller to regularise the easement.

For tenants, the issue arises less directly, but if you rent a house with a right of way, make sure it is mentioned in the lease. Otherwise, the landlord could withdraw it.

Finally, for real estate professionals (agents, notaries), this decision reminds of the importance of precisely describing easements in deeds. A notary who omits to mention an easement may incur professional liability (Article 1240 of the Civil Code). In Biscarrosse, an estate agent had to compensate a buyer to the tune of €15,000 for failure to inform about a right of way.

Four Tips to Avoid This Type of Dispute

• Before buying, check the initial division deed. Ask the notary to provide the deed of division of the original land. If the division is more than 10 years old, require a certificate of non-prescription or a conventional easement.
• Photograph the premises upon acquisition. Take photos of paths, pipes, etc., with the date. This may serve as evidence if a dispute arises years later.
• Have a bailiff report in case of dispute. If a neighbour threatens to block you, have a bailiff's report (approx. €200) describing the state of the premises. This can make a difference in court.
• Mention the easement in the deed of sale. If you are a seller, do not forget to mention active and passive easements in the deed. This protects you from a claim by the buyer.

Further Analysis: Related Case Law and Developments

The Court of Cassation had already held, in a judgment of 13 November 2014 (No. 13-22.567), that the prior owner's intent can only result from the division of a single land, and that the signs must exist at that date. The decision of 23 January 2025 confirms this line, but specifies that even a subsequent reunion of the lands does not change the reference date. This is a strict position for owners who relied on prolonged use.

However, for continuous and apparent easements, the case law remains more flexible. For example, an underground water pipe can be created by prior owner's intent even if not visible on the surface, provided its route is apparent (inspection chambers, manholes). But note: the Court of Cassation requires the signs to be 'permanent' (judgment of 12 January 2022).

This decision is part of a trend towards legal security in property transactions: written easements are preferred over tacit ones. The future likely holds a legal obligation to mention any easement in sale deeds.

In Practice: What to Do

Checklist if you think you have an easement by prior owner's intent:

1. Obtain the initial division deed (from the notary or the land registry office).
2. Search for evidence of apparent signs at the date of this division: old aerial photographs (remonterletemps.ign.fr), neighbour statements, bailiff reports.
3. If you cannot find sufficient evidence, contact the owner of the servient land to negotiate a conventional easement (cost: notary fees + possible compensation).
4. If refused, you can take legal action, but know that the burden of proof is on you. A specialised lawyer will help assess your chances.

FAQ:

• Can I use a path I have used for 20 years without a deed? Yes, if you can prove continuous, peaceful, public, and unequivocal use for 30 years (acquisitive prescription). But prior owner's intent only applies if the signs were present at the division.
• What if my neighbour blocks a passage I used? Apply to the Judicial Court for an interim order to restore the passage. But prepare your evidence.
• How much does an easement lawsuit cost? Expect between €3,000 and €10,000 in lawyer's fees, depending on complexity. Mediation may be cheaper (approx. €500).
• Can a notary create an easement by prior owner's intent in a deed? No, prior owner's intent results from the division, not from a deed. But the notary can note the existence of apparent signs and mention them, which facilitates proof.

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