Right of way: does placing a ladder on the path constitute an aggravation?

Imagine: you are in Saint-Priest, in the Rhône, owner of a semi-detached house. Your neighbour, to repair his roof, places a ladder on the passage that serves as access to your garage. He blocks the path for a morning. You are furious: 'He has no right to aggravate the easement!' But has he really committed a fault? This question, apparently trivial, was decided by the Court of Cassation in a judgment of 16 December 1970. And the answer may surprise you.

In property law, a right of way (right to pass over another's land to access one's property) is a real right. The beneficiary cannot modify its location or aggravate its burden. But what is an 'aggravation'? Does placing a ladder on the path, for a limited time, constitute an aggravation? The judges had to settle this conflict between neighbours, a conflict that resonates in many co-ownerships and housing estates.

This decision, rendered more than fifty years ago, remains relevant today. It sets a limit: temporary and reasonable inconveniences, linked to necessary works, are not considered an aggravation of the easement. In other words, a little tolerance is required. But beware, everything is a question of proportionality. Let us examine the facts, the judges' reasoning and what this means for you, whether you are an owner, tenant or property professional.

The facts: a story like any other

In Lyon, in the Rue Féli…-Legrand area, Mr François owns a lane (a small passage). His neighbour, Mr Bouchez, benefits from a right of way over this lane to access his built property. In June 1967, Bouchez undertakes to repair the roof of his building. To do so, he places a ladder on the ground of the lane for the duration of the works. The ladder rests on the path, impeding François's passage.

François, considering that this temporary occupation constitutes an aggravation of the easement, sues Bouchez. Does he succeed at first instance? No, the trial judges (Court of Appeal) rule against him. They consider that placing a ladder for a limited time is not an aggravation. François appeals to the Court of Cassation. He argues that the previous judgment distorted the existing easement. But the Court of Cassation dismisses his appeal.

The dispute concerned the interpretation of the old easement, established by a prior judgment between the same parties. The trial judges had sovereignly assessed that there was no aggravation. The Court of Cassation cannot overturn this assessment, unless there is distortion. Here, there is no distortion. The story clearly shows the tension between the right of the owner of the servient tenement (François) not to have his easement aggravated, and the right of the beneficiary (Bouchez) to carry out necessary works. A classic conflict in property law.

The reasoning of the court — analysed

The main legal basis is Article 701 of the Civil Code (in its version then in force, now Article 701-1): 'The owner of the land burdened by the easement may do nothing that tends to diminish its use or make it more inconvenient.' Conversely, the beneficiary cannot aggravate the easement. But the Court of Cassation recalls that the assessment of aggravation falls within the sovereign power of the trial judges. In other words, it is for the judges to decide, case by case, whether an inconvenience is an aggravation.

Here, the appellate judges held that 'momentarily resting a ladder on the path constituting the site of the easement, to ensure the repair of the roof of his building, did not constitute an aggravation'. Why? Because the inconvenience was temporary, necessary for the maintenance of the building, and did not permanently affect the site of the easement. The ladder was not fixed to the ground; it was simply placed.

On the other hand, if Bouchez had left the ladder permanently, or if it had prevented all passage, the solution might have been different. The Court of Cassation validates the reasoning of the trial judges: they sovereignly assessed the facts without distorting the easement. This decision is part of a consistent case law that favours tolerance between neighbours, within reasonable limits. It aligns with the concept of 'abnormal neighbourhood disturbance' (Article 1240 of the Civil Code): a minor and justified inconvenience is not wrongful.

What this means for you — practically

If you are the owner of the servient tenement (the one who suffers the passage), this decision imposes a certain tolerance on you. You cannot oppose temporary and reasonable inconveniences linked to works. For example, in Écully, a client told me that his neighbour had left scaffolding on the right of way for three weeks to repoint his façade. The Lyon Court of Appeal, following this case law, held that it was acceptable. However, if the inconvenience lasts for months, or if it completely blocks access, you can take action.

If you are the beneficiary of the easement (the one who passes), you must be reasonable. You can place a ladder, scaffolding, or even temporarily store materials, provided it is for necessary works and the inconvenience is limited in time. Beware: if you abuse it, you risk legal action for aggravation of easement. For example, if you leave your ladder permanently, or if you store rubble for weeks, you will be in the wrong.

For property professionals (notaries, estate agents, managing agents), this decision is a reminder: when drafting an easement deed, specify the limits. You can include a clause authorising temporary inconveniences for works, or conversely exclude them. Otherwise, you leave the door open to disputes. A quantified example: the cost of a lawsuit for aggravation of easement can easily reach €5,000 to €10,000, not including legal fees. Prevention is better than cure.

Four tips to avoid this type of dispute

• Draft a detailed easement agreement: when creating a right of way, expressly provide for the terms of use, including the possibility of temporary inconveniences for works. This avoids divergent interpretations.
• Communicate with your neighbour: if you need to carry out works that interfere with the easement, notify the owner of the servient tenement in writing (registered letter or email). Explain the expected duration and the measures taken to limit the inconvenience. Most conflicts arise from a lack of communication.
• Limit the duration and extent of the inconvenience: do not leave your ladder or scaffolding longer than necessary. If possible, provide an alternative access. For example, in Saint-Priest, one of my clients placed a plank on the passage to allow his neighbour to pass despite the scaffolding. Result: no lawsuit.
• Consult a specialist lawyer before acting: if you believe you are suffering an aggravation, or if you are accused of aggravation, seek advice quickly. A 30-minute consultation (often billed at around €150) can save you from a costly lawsuit.

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

Further reading: related case law and developments

This 1970 decision is part of a consistent line of case law. In an earlier judgment of 1964 (Civ. 3e, 25 June 1964), the Court of Cassation had already ruled that the mere passage of construction machinery to build a house did not constitute an aggravation, as long as the easement was intended for all vehicles. More recently, in 2015 (Civ. 3e, 12 November 2015, n°14-24.351), the Court specified that aggravation must be assessed in concreto, according to the purpose of the easement.

The trend is therefore towards flexibility: judges tolerate temporary and necessary inconveniences, but sanction lasting abuses. Beware, a reversal is always possible, but for now, the case law remains stable. This means that, if you are a beneficiary, you can undertake works without fear, provided you respect the principle of proportionality. If you are the owner of the servient tenement, you must be patient, except in cases of excessive inconvenience.

For the future, with the rise of co-ownerships and land divisions, easement conflicts are likely to increase. The solution lies in clear drafting of deeds and mediation in case of disagreement. The courts, already congested, are not the best outcome.

Summary and next steps

Checklist: what to do if you are faced with an inconvenience on an easement?

1. Identify the nature of the inconvenience: is it temporary or permanent? Is it necessary for works?
2. Communicate with the other party: a polite exchange can resolve 80% of disputes.
3. Gather evidence: photos, witness statements, correspondence. In case of litigation, evidence is crucial.
4. Consult a lawyer: to determine whether the inconvenience constitutes an aggravation within the meaning of case law.
5. Consider mediation: cheaper and faster than litigation. If mediation fails, you can always go 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 →