Servitude by Destination of the Head of the Family: When the State of the Premises Must Subsist After Division

Imagine: you buy a house in Saint-Vincent-de-Tyrosse, with a pretty path crossing the neighbour's land to access your garage. For years, everything is fine. Then one day, the neighbour decides to build a fence and blocks the passage. You say to yourself: "But this path has always been there, it's a servitude!" Yet the neighbour argues that this servitude does not exist legally. Who is right? This is exactly the question the French Supreme Court (Cour de cassation) decided in 1986, and its answer is crucial for any landowner.

The servitude by destination of the head of the family is an ancient mechanism of French law (Article 692 of the Civil Code). It allows recognition of a servitude (such as a right of way) when, before the division of a plot of land into several lots, the sole owner had installed facilities (a road, a pipeline, a window) which, after the sale, become useful to one of the lots. But be careful: the Cour de cassation requires that these facilities still exist at the time of division. If the state of the premises has disappeared in the meantime, the servitude cannot be invoked.

This decision, although made nearly forty years ago, remains relevant and applies daily in the jurisdictions of Mont-de-Marsan, Dax or elsewhere. In this article, I explain the facts, the judges' reasoning, and above all what you must do to protect your rights or avoid a dispute.

The facts: a story that happens every day

Mrs Y. is the owner of a plot in Saint-Vincent-de-Tyrosse. She has always benefited from an opening onto the neighbouring property, owned by Mr X., to access a water source. This opening was created by the former common owner, who divided the land into two lots. But one day, Mr X. blocks this opening, depriving Mrs Y. of her access. Mrs Y. sues Mr X. to have a servitude by destination of the head of the family recognised. She argues that the former owner had arranged this opening with the intention of establishing a permanent servitude.

The court of first instance rules in her favour, but Mr X. appeals. The Court of Appeal (sitting in Pau, which has jurisdiction over the Mont-de-Marsan area) sets aside the judgment: it holds that for a servitude by destination of the head of the family to be valid, the state of the premises (the opening) must still subsist at the time of the division of the estates. However, in this case, the opening had been blocked before the division. Mrs Y. appeals to the Cour de cassation.

Before the Cour de cassation, Mrs Y. argues that the servitude by destination of the head of the family is based on the intention of the common owner, and that the persistence of the state of the premises is not necessary. But the Court dismisses her appeal, upholding the position of the Court of Appeal: "the destination of the head of the family can only be invoked as a title for establishing a servitude if the state of the premises from which the servitude would arise still subsists at the time of the division of the estates." In other words, if the facility has disappeared before the division, the servitude does not exist.

The reasoning of the court — dissected

The Cour de cassation relies on Article 692 of the Civil Code, which provides that "the destination of the head of the family is equivalent to a title with respect to continuous and apparent servitudes." For such a servitude to be recognised, three conditions must be met: (1) a division of a single property into several lots, (2) an apparent facility (for example, a passageway, a visible pipeline) created by the common owner, and (3) the intention to create a permanent servitude.

But the Court adds an implicit condition: the state of the premises (the facility) must exist at the time of division. Why? Because the destination of the head of the family does not create a servitude retroactively. If the common owner removed the facility before dividing, it means they did not intend to create a servitude. In short, the intention must be manifested by a persisting fact at the date of division.

This reasoning is logical: imagine an owner who installs a water pump on their land, then removes it, and then divides their land. The new owner of the lot that benefited from the pump cannot claim a water servitude, because the pump no longer existed at the time of division. The Cour de cassation therefore rejects Mrs Y.'s argument that only intention matters.

Conversely, if the facility subsists at the time of division, then the servitude exists, even if the facility is subsequently removed by the owner of the servient estate. However, note: this decision only concerns servitudes by destination of the head of the family. For other servitudes (such as those arising from a contract or acquisitive prescription), the rules are different.

What this changes for you — concretely

This case law has significant practical consequences for all players in real estate.

For current owners: if you benefit from a passage or facility created before the division of the land, check that it still existed at the time of division. For example, if you live in Dax and your neighbour has blocked a path you have used for years, but that path was removed by the former owner before the sale of the lots, you cannot invoke the servitude by destination of the head of the family. In this case, you will need to turn to another solution: a servitude by amicable agreement, or legal action to obtain a forced right of way (Article 682 of the Civil Code) if your land is landlocked.

For buyers: before buying land, have a notary or surveyor check whether the apparent servitudes (paths, pipelines, etc.) are mentioned in the deed of sale. If not, ask the seller to provide evidence (photos, statements) that these facilities existed before the division and that they subsist. A failure to check can cost you dearly: imagine you buy a house with an unwritten right of way, and the neighbour contests it. The procedural costs to have the servitude recognised can reach €5,000 to €10,000.

For landlord owners: if you rent out a property with servitudes, ensure the tenant is informed of the rights and obligations. In case of a dispute, it is up to the owner to demonstrate the existence of the servitude, not the tenant.

For co-owners: in a condominium, servitudes between private lots may result from the condominium regulations, but also from the destination of the head of the family if the building was divided. Check that the common facilities (stairs, corridors) are properly described in the regulations.

Four tips to avoid this type of dispute

• Keep all documents relating to the division of the land: deeds of sale, boundary plans, old photos. In case of a dispute, this evidence is essential to prove that the state of the premises existed at the time of division.
• Have the existence of servitudes recorded by a notarial deed: during a sale, the notary must mention apparent servitudes. If not, demand an express mention in the authentic deed.
• If in doubt about the existence of a servitude, seek legal advice before undertaking works: for example, before building a fence that could block a passage, consult a lawyer specialising in property law. A 30-minute consultation (€45) can save you months of litigation.
• If faced with a blockage, first try an amicable solution: send a registered letter to your neighbour, propose mediation. If that fails, you can apply to the judicial court. But note that the limitation period for continuous and apparent servitudes is 30 years (acquisitive prescription).

Further reading: related case law and developments

This 1986 decision follows a consistent line of the Cour de cassation. Already in 1965, the Court had held that "the destination of the head of the family presupposes that the apparent signs of the servitude were established by the common owner before the division" (Civ. 3e, 20 May 1965). More recently, in 2015 (Civ. 3e, 10 June 2015, no. 14-16.220), the Court recalled that the burden of proving the servitude by destination of the head of the family lies with the person invoking it, and that the existence of the state of the premises at the time of division must be established by objective elements (for example, a notarial deed or photographs).

The trend of the courts is therefore clear: they require material evidence of the persistence of the facility. In the future, with the digitisation of archives, it will be easier to find old photos or plans. But in the absence of evidence, the servitude by destination of the head of the family is difficult to have recognised.

In practice: what to do

FAQ:

• Can I invoke a servitude by destination of the head of the family if the facility disappeared after the division? Yes, if the facility existed at the time of division. Its possible subsequent disappearance does not invalidate the servitude.
• What should I do if my neighbour blocks a passage I have used for a long time? First check if this passage is mentioned in your deed of ownership. If not, gather evidence (old photos, statements) and consult a lawyer. You can also request a forced right of way if your land is landlocked.
• What are the time limits for taking action? For a continuous and apparent servitude, the acquisitive prescription period is 30 years. You can therefore act even if the facility was removed recently, provided you can prove you have used the servitude for 30 years without interruption.
• How much does a procedure to recognise a servitude cost? Lawyers' fees range from €1,500 to €5,000 for a first instance procedure, depending on complexity. A judicial expert's fee may be added (€1,000 to €3,000).

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