Servitude of Passage: The Judge Must Determine the Route Even if All Owners Are Involved

Imagine: you have just bought a house in Bray-Dunes, with a sea view, but to access it you must cross your neighbour's land. No direct road, no communal path: your property is landlocked (no access to the public highway). What can you do? You can request a servitude of passage (right to pass over the neighbour's land). But where? Your neighbour wants you to pass at the back of their garden, while you believe a shorter route is possible. The judge must decide. The decision of the Court of Cassation of 23 April 1992 (No. 90-13.071) provides a clear answer: once all the owners concerned are involved, the judge is required to determine the route of the servitude in accordance with the rule of the shortest route from the landlocked property to the public highway. In other words, it is not the neighbour who chooses the location, but the judge, applying an objective criterion.

The Facts: A Story That Happens Every Day

The Y spouses, owners of a plot in Bray-Dunes, find themselves without access to the public highway. Their land is surrounded by several neighbouring plots, including those of Mr Z, who refuses to grant them a direct passage. The Y spouses sue their neighbours to obtain a servitude of passage (a legal right to pass over another's land) under Article 682 of the Civil Code (which provides that any owner whose land is landlocked has a right of way over neighbouring lands). The Tribunal de grande instance of Dunkerque is seized. The Y spouses request that the passage be established on the shortest route, crossing Mr Z's plot. But Mr Z opposes this, arguing that the passage should take another, longer route crossing several properties. The first instance judge rules in favour of the Y spouses, ordering a passage over Mr Z's plot on the grounds that it is the shortest route. Mr Z appeals (challenges the decision before the Douai Court of Appeal). The Court of Appeal upholds the judgment. Mr Z appeals to the Court of Cassation (challenges the decision before the Court of Cassation). He argues that the judge cannot impose a passage over his land alone when other owners are involved. The Court of Cassation dismisses his appeal (upholds the Court of Appeal's decision). It affirms that, since all the owners of the affected lands have been brought into the proceedings (i.e., named as defendants), the judge is required to determine the route of the servitude in favour of the landlocked property, in accordance with Article 683 of the Civil Code (which provides that the passage must be taken on the side where the route is shortest from the landlocked property to the public highway). In short, the judge cannot simply say 'you have a right of way'; he must say exactly where, and do so by choosing the shortest route.

The Reasoning of the Court — Analysed

The heart of the decision lies in one sentence: 'the passage must normally be taken on the side where the route is shortest from the landlocked property'. This rule is laid down by Article 683 of the Civil Code, which provides that 'the passage must be taken on the side where the route is shortest from the landlocked property to the public highway'. But note: this is not an absolute rule. Article 683 adds that 'nevertheless, it must be fixed in the place least harmful to the person over whose land it is granted'. In other words, the judge must reconcile two criteria: the shortest route AND the least damage to the neighbour. In the case at hand, the Court of Cassation recalls that the lower court (the Court of Appeal) had freely assessed that the shortest route was also the least harmful. What few people know is that the judge is obliged to give reasons for his decision on this point. He cannot simply say 'it is the shortest, so it is fine'. He must explain why this route is also the least harmful. For example, by comparing the length, the impact on buildings, crops, etc. In this decision, the Court of Cassation validates the reasoning of the Court of Appeal, which had dismissed Mr Z's argument that the passage should have crossed several properties. The Court of Appeal had noted that this alternative route was longer and more harmful. Thus, the decision confirms a well-established case law: the judge, when seised of a claim for a servitude for landlocked property, must determine the route in accordance with Article 683, even if all neighbours are involved. The presence of all owners in the proceedings allows the judge to choose the shortest route, without being limited by the absence of a neighbour. This is a confirmation, not a change.

What This Means for You — Practically

If you are the owner of a landlocked property (for example, in Téteghem, where some plots are only accessible via rural paths), this decision protects you. The judge cannot impose a route that goes around several properties if a shorter route exists, even if that short route only concerns one neighbour. For the owner of the servient tenement (the one who suffers the passage), the decision recalls that you can challenge the route if another route is less harmful. But the burden of proof lies with you: you must demonstrate that the shortest route is not the least harmful. Concrete example: in Bray-Dunes, a landlocked plot of 500 m², where the shortest route is 10 metres over neighbour A's plot, but a 15-metre route over neighbour B's plot is less disruptive (no garden, no building). The judge may choose the 15-metre route if neighbour A proves that the 10-metre passage destroys his terrace. In practice, for buyers, check before purchasing that the plot has direct access or an already established servitude. If you are a tenant, you are not directly concerned, but your landlord may be involved. In co-ownership, the same principle applies to landlocked common parts. If you are in this situation, you must act quickly: adverse possession (right to pass without challenge for 30 years) can create a servitude by operation of law, but a clear court decision is preferable. In my practice, I have come across cases where owners in Téteghem had let a landlocked situation drag on for years, and the neighbour had eventually built a wall. Result: lengthy and costly proceedings.

Four Tips to Avoid This Type of Dispute

• Check access before buying: during the promise to sell, ask the notary to verify whether the plot has direct access to the public highway or a servitude of passage. If not, require the seller to obtain a servitude before signing.
• Have the landlock confirmed by a bailiff: if you believe your property is landlocked, have a bailiff (commissaire de justice) draw up a report to prove the lack of access. This document will be useful in court.
• Propose an amicable settlement: before going to court, offer your neighbour compensation for the servitude. Article 682 of the Civil Code provides for compensation proportionate to the harm suffered. A written agreement signed before a notary will avoid years of litigation.
• Sue all concerned owners: if you must go to court, ensure that all owners of the lands over which the passage could be established are named as defendants. Otherwise, the judge cannot determine the route of the servitude.

Further Reading: Related Case Law and Developments

This 1992 decision is part of a consistent line of case law from the Court of Cassation. Already, in a judgment of 17 July 1967, the Court had held that the judge must determine the route of the servitude based on the shortest and least harmful route. More recently, a judgment of 23 September 2020 (No. 19-16.789) recalled that the judge cannot simply order a passage without specifying its location. The trend in the courts is therefore towards increased precision. What this means for the future: if you own a landlocked property, you have a strong chance of obtaining a passage, but you must definitely sue all potential neighbours. Conversely, if you are a neighbour, you can challenge the route by demonstrating that another route is less harmful. Case law is also evolving on the concept of landlock: a property is considered landlocked only if it has no access to the public highway, even an inadequate one. However, be careful: if you have access, even difficult, you are not landlocked.

Summary and Next Steps

FAQ:

• Question: My land is landlocked, must I necessarily take the shortest route?
  Answer: Yes, that is the principle, but the judge may choose a longer route if it is less harmful to the neighbour. You must prove that the shortest route is also the least harmful.
• Question: Can I request a servitude of passage if my property has access but it is impassable (e.g., muddy dirt road)?
  Answer: No, landlock requires a total lack of access. Difficult access is not sufficient. You may need to consider a conventional servitude (agreement with the neighbour).
• Question: My neighbour refuses to let me pass, what should I do?
  Answer: Send them a registered letter with return receipt requesting the grant of a passage. If they refuse, file a claim with the judicial court (formerly the Tribunal de grande instance) of the location of the property. Legal proceedings can take 1 to 2 years.
• Question: How much does a servitude of passage procedure cost?
  Answer: Lawyer's fees vary, but expect between €2,000 and €5,000 for a simple procedure, plus any expert fees (€1,000 to €3,000). The compensation due to the neighbour is fixed by the judge, often between €500 and €5,000 depending on the inconvenience.
• Question: Can I acquire the servitude by prescription (30 years)?
  Answer: Yes, if you pass in a continuous, peaceful, and unequivocal manner for 30 years, you can acquire a servitude by prescription. But this is difficult to prove. Better to have a title.

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 →