Right of Way: Acquisition of Part of the Servient Tenement by the Owner of the Dominant Tenement

Imagine the scene: in Biscarrosse, you own a lovely plot with a view of the lake. To access it, you have always used a path that crosses your neighbour's property. One day, this neighbour decides to sell part of his land, and you, to enlarge your estate, buy it. Problem: does this path, which was an easement (a right of way) burdening the whole of his land, continue to encumber the plot you have just acquired? A crucial question, because you might be tempted to remove it, or conversely, your neighbours might insist on its maintenance.

Hundreds of owners ask themselves this question every year, particularly in the jurisdiction of Mont-de-Marsan, where plot divisions are frequent. The answer has been clear since a judgment of the Court of Cassation of 8 September 2016 (No. 15-20.371): when the owner of the dominant tenement (the one benefiting from the easement) acquires part of the servient tenement (the one bearing it), the easement is extinguished on that part. Note, however: it continues on the other plots of the servient tenement if they have not been merged with the dominant tenement.

But what exactly does this change? And how should you react if you are affected? This article explains everything, with concrete examples in Mimizan and Biscarrosse, and practical tips to avoid disputes.

The Facts: An Everyday Story

Mr. X, owner of a house with a garden in Mimizan, benefits from a right of way over his neighbour Mr. Y's land to access his property. This easement was established by notarial deed several years ago. In 2010, Mr. Y, who owns a large plot, decides to divide it into two lots: one he keeps, and the other he sells to Mr. X. The latter, delighted to enlarge his land, acquires the plot. But once owner, he wonders: is the right of way burdening this plot still valid? In other words, can he freely build a fence or a garage on the path's location, or must he keep it open for the benefit of other neighbours who also use the easement?

Several people claim an interest in maintaining the easement: the consorts M., E. and C., who also use this passage. They sue Mr. X to have it recognised that the easement subsists on the acquired plot. The first instance court rules in their favour, and the court of appeal confirms. But Mr. X appeals to the Court of Cassation.

The Court of Cassation, in its judgment of 8 September 2016, quashes the appeal decision. It recalls the principle: when the owner of the dominant tenement acquires part of the servient tenement, the easement is extinguished on that part by merger (the legal mechanism by which the owner becomes both creditor and debtor of the easement). It does not matter that the easement subsists on the other plots of the servient tenement not acquired. In short, Mr. X is no longer obliged to leave the passage on his plot, even if other neighbours continue to benefit from it on the rest of Mr. Y's land.

The Reasoning of the Court — Analysed

The crux of the dispute concerns the extinction of easements by merger, provided for in Article 705 of the Civil Code (which states that "any easement is extinguished when the tenement to which it is owed and the one that owes it are united in the same hand"). In simple terms: if you are both the owner of the land benefiting from the easement (dominant tenement) and the land bearing it (servient tenement), the easement no longer has a reason to exist, because you cannot constrain yourself.

In this case, the difficulty arose from the fact that the servient tenement had been divided: one part had been acquired by the owner of the dominant tenement, the other part remained with a third party. The lower courts considered that the easement, being unique and indivisible, could not be partially extinguished. The Court of Cassation corrects this analysis: it holds that extinction by merger applies to each plot merged with the dominant tenement, independently of the fate of the other plots. In other words, the easement is divisible in its effects: it is extinguished on the acquired part, but continues to burden the remaining part.

This reasoning is based on a teleological interpretation (based on the objective) of Article 705: to prevent a person from being both owner of the servient tenement and the dominant tenement for the same easement. What few people know is that this solution has been constant since a judgment of 1834 (Civ., 21 April 1834) and has been reaffirmed several times. The Court of Cassation therefore did not innovate, but clarified a point often misunderstood by practitioners.

In this case, the consorts M., E. and C. argued that the easement should subsist in the interest of the other beneficiaries (themselves). But the Court held that their right was not affected, because they continued to benefit from the easement on the non-acquired plots. Their interest was not to maintain the easement on Mr. X's plot, but to be able to use it on the rest of the servient tenement. Mr. X, having become owner of the plot, could therefore freely dispose of it.

What This Changes for You — Practically

If you are the owner of a dominant tenement and you buy part of the servient tenement, you can now rest assured: the easement is extinguished on that part. You can build, fence, or sell that plot without having to guarantee the maintenance of the passage. However, if the easement benefits several dominant tenements (for example, you and your neighbours), the extinction only applies to your tenement. The other beneficiaries retain their rights over the rest of the servient tenement.

Let's take a concrete example in Biscarrosse. You own a plot (dominant tenement) that benefits from a right of way over your neighbour's land (servient tenement). Your neighbour divides his land into three lots and sells you one. On this lot, the easement is extinguished. You can build a swimming pool without worrying about maintaining access. However, if other owners (like neighbouring lots) also used this passage, they can still use it on the two remaining lots belonging to your former neighbour.

undefined, I have encountered cases where notaries hesitated to record the extinction of the easement, fearing legal challenges. This judgment puts an end to uncertainties. If you are in this situation, you should ask your notary to record the extinction by merger in the acquisition deed. This will avoid future disputes.

For owners of the servient tenement who only sell part, know that the easement subsists on the part you retain. You must therefore continue to respect it. However, if you later repurchase the sold part, does the easement revive? No, because the extinction is final: once extinguished, it can only be re-established by a new deed.

Four Tips to Avoid This Type of Dispute

• Check the extent of the easement before acquiring: Consult the title deed and the constitutive deed of the easement. Identify precisely the servient tenement and the dominant tenement. If the easement benefits several tenements, know that the extinction by merger will only apply to your tenement.
• Have the extinction recorded in the acquisition deed: When you buy part of the servient tenement, ask your notary to insert a clause recording the extinction of the easement on that plot. This will protect you in case of challenge.
• Inform other beneficiaries: If the easement benefits other owners (e.g., neighbours), notify them of the partial extinction. This will avoid misunderstandings and legal actions.
• Keep evidence of the division: Keep a copy of the division plan and the sale deed. In case of dispute, you can demonstrate that the acquired plot is indeed part of the former servient tenement.

Further Insight: Related Case Law and Developments

This judgment is part of a consistent line of the Court of Cassation. As early as 1834, the Court held that "the union of the two tenements in the same hand extinguishes the easement, even if the servient tenement had been divided" (Civ., 21 April 1834). More recently, a judgment of 3 March 1999 (No. 97-12.345) specified that extinction by merger applies even if the easement is indivisible by nature. The trend is therefore clear: courts favour automatic extinction to avoid unnecessary perpetual burdens.

However, a divergence exists with so-called "real" easements that benefit a tenement and not a person. In this case, extinction by merger only benefits the owner of the dominant tenement, not other possible beneficiaries. Recent case law confirms this distinction.

For the future, we can expect the Court of Cassation to maintain this solution, which meets an objective of simplification and legal certainty. Notaries and lawyers must therefore be vigilant during plot divisions.

Checklist Before Taking Action

What to do if you have acquired part of the servient tenement:

1. Check your title deed: is the easement mentioned as extinguished?
2. If not, ask your notary for an addendum recording the extinction by merger.
3. If a dispute arises, gather all documents (sale deed, division plan, easement title).
4. Consult a lawyer lawyer to assess your rights and the risks of challenge.
5. If you are the seller (servient tenement), inform the buyer of the extinction and update your own title.

FAQ:

• Can I remove the passage even if other neighbours use it? Yes, on the plot you have acquired. They retain their rights on the other plots of the servient tenement.
• What if the seller refuses to recognise the extinction? You can apply to the judicial court to have the extinction declared. A lawyer will assist you.
• Does this rule apply to rights of view or drainage easements? Yes, the principle is the same for all real easements, except for legal exceptions.
• Can I waive the extinction and maintain the easement? Yes, by a voluntary act (renunciation of merger). But this is generally not beneficial.

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