Easement between Condominium Units: The Court of Cassation Rules (2004)

Do you have a garage in your condominium but to access it you must cross your neighbour's garden? Or perhaps you bought a unit with a "right of way easement" mentioned in the deed, but the managing agent tells you that this is impossible in a condominium? This is exactly the kind of situation that arose in Montauban a few years ago, leading to a key decision by the Court of Cassation.

Many owners think that condominium ownership is a rigid system, where only common and private parts exist, without the possibility of creating real rights (easements) between units. But the legal reality is more subtle. The question is simple: can an easement (e.g., a right of way, right of view, or garage right) be established between the private parts of two separate units in the same condominium building?

The answer from the Court of Cassation on 30 June 2004 is clear: yes, it is possible. And this decision has important practical consequences for owners, buyers and co-owners. Let's break it down together.

The Facts: A Story That Happens Every Day

Imagine a condominium building in Montauban, rue de la République. Mrs A. owns a unit comprising a ground-floor flat and a cellar. Her neighbour, Mr B., owns a neighbouring unit with a garage. To access his garage, Mr B. must cross a courtyard that forms part of Mrs A.'s unit (private part). One day, Mrs A. decides to fence off her courtyard, preventing any passage. Mr B. then invokes a right of way easement that was supposedly created when the building was divided into units several years ago. Mrs A. contests this: according to her, in a condominium, there can be no easement between private units, because the owner of each unit is a co-owner of the common parts and exclusive owner of his private parts, but the units would be "in the hands of the same owner" (the owners' association).

The dispute goes to the Tribunal de Grande Instance of Montauban, then to the Court of Appeal of Agen. The Court of Appeal rules in favour of Mrs A.: it holds that condominium ownership is incompatible with the establishment of an easement between two private units. Mr B. appeals to the Court of Cassation. The Court of Cassation quashes the appeal decision and refers the case back to the Court of Appeal of Toulouse. The Supreme Court judges state that the division of a building into condominium units is not incompatible with the establishment of easements between the private parts of two units, these heritages belonging to distinct owners (the holder of each unit).

In short, Mr B. can benefit from a right of way easement over Mrs A.'s courtyard, if that easement was regularly constituted.

The Reasoning of the Court — Explained

The Court of Cassation relies on Article 637 of the Civil Code (an easement is a charge imposed on a heritage for the use and utility of a heritage belonging to another owner) and on Article 1 of the Law of 10 July 1965 on condominium ownership. It recalls that the holder of a condominium unit has exclusive ownership of the private part of his unit and undivided ownership of the share of the common parts attached to that unit. Thus, each unit is a distinct "heritage" belonging to a distinct owner. Nothing therefore prevents an easement from being established between two units, as between two ordinary neighbouring properties.

In other words, the Court rejects the argument that condominium ownership is an indivisible "block". It recognises that private parts are individual assets, capable of supporting easements. This reasoning is a confirmation of the freedom to create real rights ancillary to ownership, subject to the rules of condominium ownership (in particular the condominium regulations and the general meeting).

The lower court judges (Court of Appeal of Agen) made a mistake in considering that condominium ownership was incompatible with the easement. The Court of Cassation recalls that the only limit is that the easement must not infringe the rights of other co-owners or the destination of the building. But if it is provided for in the condominium regulations or consented to by the owners concerned, it is valid.

What This Changes for You — Concretely

Concretely, this decision opens the way to many possibilities for owners in condominiums.

• For the landlord owner: You can let a unit with a right of way over another unit, for example to access a garden or a car park. Ensure the easement is mentioned in the lease and in the condominium regulations.
• For the buyer: Before buying a unit, check whether easements exist or are possible. A unit with an easement of view over a private garden may be more valuable. But beware: an easement can also be a burden (e.g., having to let your neighbour pass).
• For the co-owner: If you wish to create an easement between your unit and a neighbour's (e.g., to install a service door), you must obtain the neighbour's agreement and, depending on the case, a modification of the condominium regulations by the general meeting.
• For the condominium managing agent: He must be vigilant: a regularly constituted easement must be respected by all. He cannot ignore it on the pretext that condominium ownership would prohibit it.

Example with figures: in Montauban, an owner of a unit with a landlocked garage was able to obtain a right of way easement over the neighbouring unit, increasing the value of his property by €15,000 (the price of an additional garage). Without this easement, the garage was unusable.

Four Tips to Avoid This Type of Dispute

• Consult the condominium regulations: Before buying or creating an easement, check whether the regulations allow or prohibit it. Some regulations exclude any easement between units.
• Have a notarial deed drawn up: An easement must be established in writing, before a notary, and published in the land registry to be enforceable against third parties (future buyers).
• Inform the managing agent and the general meeting: Even if the easement only concerns private parts, it is prudent to inform the managing agent, as it may affect the balance of the condominium (e.g., right of way modifying service charges).
• Anticipate conflicts: If you are considering an easement, negotiate with the neighbour and have the agreement recorded in an authentic deed. A simple verbal agreement or letter can be challenged.

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Further Information: Related Case Law and Developments

Before the 2004 decision, some appeal courts (such as that of Agen) considered that condominium ownership prohibited easements between private units, on the ground that the owners' association owned the common parts and the units were indivisible. The Court of Cassation had already ruled in favour of easements (Civ. 3e, 23 October 1991, n° 89-21.363), but the 2004 decision is particularly clear and is now authoritative.

Since 2004, the courts have consistently applied this principle. For example, the Court of Appeal of Toulouse (in the remitted case) recognised the right of way easement in favour of Mr B. The trend is therefore towards recognition of easements between units, subject to their conformity with the condominium regulations and the destination of the building.

In the future, case law may evolve to better regulate these easements, particularly to avoid abuses (e.g., an easement that would devalue the servient unit). But for now, the principle is established: condominium ownership is not an obstacle to the creation of easements between private parts.

Checklist Before Acting

1. Do you want to create an easement over your unit or a neighbour's? Check the condominium regulations and the neighbour's agreement. Consult a notary to draft the deed.
2. Are you buying a unit with an easement mentioned in the deed? Ensure it is properly registered and not contested. Ask the notary to verify.
3. Are you faced with an existing easement you want to challenge? Know that if it was regularly constituted, you cannot challenge it. But you can seek its extinction if it has not been used for 30 years (acquisitive prescription).
4. Are you a tenant? The easement binds you as it does the owner. You must respect it (e.g., let the neighbour pass).
5. Are you a managing agent? Mention the easements in the maintenance log and inform the co-owners. In case of dispute, recommend mediation before going to court.

Are you 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 →