Discontinuous Easement: How to Prove Your Right of Access After Land Division

Imagine yourself in Mont-de-Marsan, owner of a beautiful house with a garden. You sell part of your land to your neighbour so they can build their own home. For years, you use a path crossing this land to access your garage. One day, the new owner decides to fence their plot and blocks your access. What to do? Have you lost your right of way?

This situation is one I encounter regularly in my practice, whether in the jurisdiction of Mont-de-Marsan or on the Côte d'Azur. Property owners often find themselves helpless in the face of this type of conflict, which can turn a peaceful neighbourhood into open warfare. The question is simple but crucial: how do you prove you have the right to use a passage on someone else's land when nothing is written in black and white?

The Court of Cassation has just answered this question in a decision dated 23 March 2022. The judges recall an old but often overlooked rule: the "destination du père de famille" (i.e., the usage established by the former sole owner) constitutes title for discontinuous easements (those requiring human intervention, such as a passage) when there are apparent signs. In plain terms, if your access was visible and materialised at the time of the land division, and the deed of sale does not provide for its extinction, you retain your right. But what does this change concretely for you?

The Facts: A Story That Happens Every Day

The case could take place in any commune within the jurisdiction of Mont-de-Marsan, perhaps even in Tarnos. Mr Dupont, owner of a large plot of land, decides to divide it into two parcels. He sells the first to Mr Martin, while keeping the second for himself. During the period when he was the sole owner, Mr Dupont had created access to his garage by passing through what became Mr Martin's parcel. This access was materialised by a visible inspection chamber (an opening in the ground allowing access to pipelines).

Years pass. Mr Dupont regularly uses this passage without Mr Martin objecting. Then one day, Mr Martin decides to fence his property and prohibits Mr Dupont from using the path. The conflict erupts: Mr Dupont claims he has a right of way, Mr Martin retorts that nothing is provided for in the deed of sale. How to decide?

Mr Dupont brings the matter before the court. At first instance, the judges rule in his favour, considering that the easement (the right to use another's passage) existed in fact. Mr Martin appeals, arguing that a discontinuous easement can only arise by title (a written document) or by prescription (prolonged use of 30 years). The court of appeal rules in his favour, considering that without a written document, there is no easement. Mr Dupont then appeals to the Court of Cassation. The judicial twist well illustrates the complexity of these situations where each party believes they are in the right.

The Court's Reasoning — Analysed

The Court of Cassation quashes the court of appeal's judgment and recalls the fundamental principle of the destination du père de famille. The legal basis is found in Article 692 of the Civil Code, which states that "the destination du père de famille constitutes title with respect to continuous and apparent easements". In other words, when the same owner uses their different parcels in a certain manner, this usage creates easements that persist after division.

But be careful: the court specifies that this principle also applies to discontinuous easements (such as a passage) when they present apparent signs. This is the crucial element of the decision. In this case, the inspection chamber materialising the access constituted just such an apparent sign. The judges emphasise that when, at the time of division of a plot of land, there exist apparent signs of the easement and the deed of division contains no stipulation contrary to its maintenance, the easement subsists.

Let's analyse the arguments of both parties. Mr Martin maintained that a discontinuous easement could only arise by written title, in accordance with Article 691 of the Civil Code. The Court of Cassation responds indirectly: true, in principle, discontinuous easements require a title, but the destination du père de famille constitutes precisely an implicit title when it is apparent. Mr Dupont, for his part, argued that the usage established before the division should continue, which the court fully validates.

What few people know: this decision does not create a new rule, but confirms and clarifies consistent case law. It reminds us that judges must examine the situation concretely at the time of division. Were there visible signs of the easement? Did the deed of sale provide for its extinction? If not, the easement persists. In short, written formalities are not always necessary when the physical reality speaks for itself.

What This Changes for You — Concretely

If you are a landlord in Mont-de-Marsan, this decision concerns you directly. Imagine you rent out a house with access crossing the neighbouring land. If this access was materialised (by a gate, a paved path, an opening) at the time the land was divided, and nothing was provided to remove it, your tenant has the right to use it. You must therefore verify this situation before signing a lease, at the risk of your tenant claiming compensation from you if access is denied.

For tenants, the rule is protective. If you occupy a dwelling whose access passes through a neighbouring property, and this access is visible (for example, a well-defined alleyway), you can invoke the easement even if your lease does not mention it. But be careful: in case of dispute, you will need to prove that the access existed before the land division. Take photos, keep plans, question former occupants.

Purchasers must be extra vigilant. When you buy a property, especially in developing areas like Tarnos where land divisions are frequent, examine accesses meticulously. A concrete example: you buy a house for €250,000 in Tarnos, with a garage accessible via a path crossing the neighbouring land. If this path is materialised (kerbs, lighting) and the deed of sale for the neighbouring land does not mention the extinction of the right of way, you retain this right. But if you do not verify this, and the neighbour blocks your access, you could lose 20% of your property's value, i.e., €50,000!

For co-owners, the situation is analogous. If common areas (such as a technical room) are accessible via a passage on adjacent land, and this passage is apparent, the easement may exist for the benefit of the co-ownership. undefined, I have encountered cases where co-ownerships found themselves without access to their water meters because the passage had been removed by the neighbour. Prior verification is essential.

How to react if you are in this situation? First, do not take the law into your own hands by forcing passage. Second, gather all evidence of the ancient existence of the access (old photos, testimonies, plans). Third, consult a lawyer specialised in property law within 2 months of the refusal of access, a deadline often critical for effective action.

Four Tips to Avoid This Type of Dispute

• When dividing land, ALWAYS expressly mention easements in the deed of sale. If you sell a parcel and wish to retain a right of way, demand that it be written in black and white. If, on the contrary, you want to remove an existing easement, include an explicit extinction clause.
• Before buying, have a complete legal survey carried out by a professional. A notary or specialised lawyer will examine not only the title deed, but also the physical situation of the premises. A path, a gate, an opening can create rights that the seller themselves may be unaware of.
• Photographically document all accesses and apparent installations. Take dated photos of paths, inspection chambers, openings that cross neighbouring lands. These images can serve as evidence in case of later dispute, sometimes years afterwards.
• In case of doubt, act preventively through an amicable settlement. If you notice that an access could lead to confusion, propose to your neighbour to sign a written agreement specifying each party's rights. A simple recorded delivery letter with acknowledgement of receipt constituting agreement can avoid a costly lawsuit (count at least €3,000 in lawyer's fees for legal action).

Deep Dive: Related Case Law and Developments

This decision fits within consistent case law of the Court of Cassation. Already in 2015 (judgment no. 14-17.902), the judges had recalled that the destination du père de famille could constitute title for apparent discontinuous easements. The novelty here lies in the emphasis on "apparent signs" and on the absence of contrary stipulation in the deed of division.

A prior divergent decision? In 2008, some courts of appeal still required a formal written document for discontinuous easements, regardless of their appearance. The current trend is clearly in favour of a more concrete approach: judges first look at the physical reality of the premises. This means for the future that property owners will need to be even more vigilant about the materialisation of accesses.

undefined, I have encountered cases where clients had lost rights because an access, though regularly used, was not sufficiently "apparent" (for example, a simple passage through grass without any installation). The lesson is clear: if you want a right of way to survive a land division, materialise it clearly (paving, gate, lighting).

Key Points to Remember

Checklist "What to do if...":

1. If you divide land: explicitly mention in the deed of sale all existing easements (maintenance or extinction).
2. If you buy a property: physically verify all accesses and have their condition recorded by a professional.
3. If you are refused access: immediately gather evidence of its ancient existence (photos, witnesses, plans).
4. If you regularly use a passage: clearly materialise it to make it an "apparent sign".
5. In case of dispute: consult a specialised lawyer within 2 months, a crucial deadline for effective action.

Frequently Asked Questions:

"Is a simple path through grass an apparent sign?" No, generally not. There needs to be a visible installation (paving, kerbs, lighting).

"What to do if the deed of sale is silent on the easement?" If apparent signs existed at the time of division, the easement subsists automatically.

"How much does a lawsuit for an easement cost?" Count between €3,000 and €8,000 in lawyer's fees, depending on complexity, not including expert fees.

"Can you create an easement after division?" Yes, but only by written agreement with the neighbour or by thirty-year prescription (30 years of continuous use).

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