Real Estate Servitude: When Your Neighbour Prohibits Any Use of Your Land

Imagine you own a beautiful plot in Mimizan, with a view of the ocean. You bought this land to build your dream home, but here's the catch: your neighbour claims to have an exclusive right over part of your property. They forbid you from setting foot on it, planting a tree, or parking your car. You feel dispossessed of what you legally acquired. Does this situation seem normal to you?

In real estate practice in the Landes region, from Capbreton to Mont-de-Marsan, these neighbourhood disputes over servitudes (real rights established on one property for the benefit of another property) are commonplace. Owners, tenants, developers: all can find themselves caught up in these complex disputes where everyone's rights seem to intertwine.

The decision of the Cour de cassation of 24 May 2000 provides a clear answer to this fundamental question: how far can a servitude go? Can it completely deprive the owner of the use of their property? The answer is no, and this affirmation has concrete consequences for all real estate stakeholders.

The Facts: A Story That Happens Every Day

The story begins with the Y... co-owners, owners of a building plot in a commune in the Landes. On this land were several buildings, witnesses to an already rich real estate history. In 1988, after carrying out a plot subdivision (an operation consisting of dividing a plot into several lots), they sold lot B to the company Toutes transactions immobilières (TTI).

But here's where things get complicated: on the sold land, an encroachment (occupation of part of the land by a construction or installation) already existed. This encroachment was continuous (permanent over time), apparent (visible to the naked eye), and, most importantly, it dated from before the plot subdivision. The common authors of the two lots—that is, the initial sellers—had maintained it as it was.

The new owner of lot B, the company TTI, thus finds themselves with land burdened by this particular right. But what right exactly is it? Is it a simple right of way, or a more extensive right? The company Natiocrédibail, involved in the case, contests the nature of this encroachment. The courts must then decide: does this encroachment fall under a servitude by the common owner (servitude established by the owner of a property on their own property before dividing it) or something else?

undefined in Mont-de-Marsan, I have encountered cases where owners found themselves in similar situations: after purchasing land, they discover that their neighbour claims to have exclusive rights over part of their property. The question that then arises is always the same: how far can these rights go?

The Court's Reasoning—Analysed

The Cour de cassation, in its judgment of 24 May 2000, reaffirms a fundamental principle of servitude law: a servitude cannot constitute an exclusive right that would prohibit the owner of the servient tenement (the property burdened by the servitude) from any enjoyment of their property. In other words, a servitude must leave the owner of the burdened land the possibility of using their property, even in a limited manner.

The legal basis for this decision is found in Articles 637 to 710 of the Civil Code, which govern servitudes. Article 637 defines a servitude as "a burden imposed on an estate for the use and utility of an estate belonging to another owner." This definition necessarily implies that the owner of the servient tenement retains a property right, even if diminished.

In the present case, the judges analysed the nature of the alleged encroachment. They held that it was a continuous and apparent encroachment, prior to the plot subdivision, and maintained as it was by the common authors of the two lots. This configuration precisely corresponds to the definition of a servitude by the common owner, also called a servitude by destination of the common owner.

But be careful: the Court specifies that this servitude, to exist, must respect the principle of proportionality. It cannot completely deprive the owner of the use of their land. This is the heart of the decision: even a legally established servitude has limits. It cannot transform into an exclusive right for the benefit of the owner of the dominant tenement (the property benefiting from the servitude).

This reasoning constitutes a confirmation of prior case law rather than an evolution. The Court reaffirms old but essential principles, often forgotten in daily real estate practices. The parties' arguments clashed over the legal qualification of the encroachment: legitimate servitude or abusive encroachment? The Court ruled in favour of the first qualification, but by setting clear limits to its extent.

What This Changes for You—Concretely

If you are a landlord in Capbreton, this decision protects you. Imagine you rent out a villa with a garden. Your tenant claims to have an exclusive right over part of the land, prohibiting you from accessing it for maintenance. Thanks to this case law, you can assert that even if a servitude exists, it cannot completely deprive you of the use of your property. You retain the right to maintain the land, check its condition, and carry out necessary works.

For purchasers, this decision is crucial when buying a property. Before signing the authentic deed at the notary's, you must check for any existing servitudes. But above all, you must check their extent. A right of way to access a neighbouring property is one thing. An exclusive right that would prohibit you from using part of your land is another, and the latter is not valid in law.

Concretely, if you discover after purchase that a servitude completely deprives you of the use of part of your land, you have recourse. You can ask the judge to find this servitude illegal and order its removal. The time limits for action vary, but generally, you have 5 years from the discovery of the disturbance to take legal action. Procedural costs can range from €3,000 to €8,000 depending on the complexity of the case, but the stakes are often much higher: the value of part of your land can represent tens of thousands of euros.

For co-owners, the principle also applies. A servitude established for the benefit of a co-ownership lot cannot completely deprive other co-owners of the use of common areas. Each must be able to enjoy their property, even in a limited manner.

Four Tips to Avoid This Type of Dispute

• Before any purchase, have a servitude survey carried out by a chartered surveyor: this professional will identify all existing servitudes and specify their exact nature. Average cost in the Landes: €800 to €1,500 depending on the land area.
• Require the seller to provide a servitude certificate: this document, drawn up by a notary, lists all servitudes burdening the property. Do not rely solely on the seller's or estate agent's verbal statements.
• Check the land registry and previous titles of ownership: often, servitudes are mentioned in old notarial deeds. A notary or specialised solicitor can assist you in this research.
• In case of doubt, seek advice before signing: preventive legal consultation costs less than a lawsuit. undefined, I have seen too many clients regret not consulting before buying.

Further Insight: Related Case Law and Developments

The 2000 decision fits into consistent case law. Already in 1995, the Cour de cassation had reaffirmed that "a servitude cannot have the effect of depriving the owner of the servient tenement of any enjoyment of their property" (Cass. 3rd civ., 15 March 1995, no. 93-15.789). This position has been confirmed several times since.

More recently, in a judgment of 13 January 2016 (no. 14-26.677), the Court specified that even conventional servitudes (established by agreement between the parties) must respect this principle. The parties cannot, by their will alone, create a servitude that would completely deprive the owner of the use of their property.

The trend in the courts is clear: they protect the right of ownership against excessive infringements. Even legitimate servitudes have limits. What few people know is that this protection also applies to so-called "continuous" servitudes (which are exercised without human intervention, like a right to a view) and "discontinuous" servitudes (which require human intervention, like a right of way).

For the future, this case law means that real estate professionals must be particularly vigilant when drafting deeds. A clause creating an overly extensive servitude risks being annulled by the courts, with all the consequences that entails for the parties.

What You Must Absolutely Remember

Numbered Checklist "What to Do If...":

1. If you are buying land: systematically check for the existence and extent of servitudes before signing the authentic deed.

2. If you are selling a property: declare all existing servitudes. An omission can engage your liability and void the sale.

3. If your neighbour claims to have an exclusive right over your land: require them to prove the legal existence of this right. A simple assertion is not enough.

4. If a servitude completely deprives you of the use of part of your property: consult a specialised solicitor. This servitude is probably illegal.

5. If you wish to establish a servitude: have it drafted by a notary or solicitor to ensure it respects legal limits.

In short, remember this: your right of ownership is protected. Even burdened by a servitude, you retain the right to use your property. No one can completely deprive you of it.

Do you 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 →