Right of way: impossible over jointly owned property, even for a co-owner

You own a house in Le Cannet, with a garden that gives onto a neighbouring plot. To access your garage, you have always used a path crossing this land, without ever having asked for written permission. One day, the new owner prohibits you from passing. What to do? The question of the easement (a real property right allowing the owner of a piece of land – the dominant tenement – to benefit from a limited use of another's land – the servient tenement) is at the heart of many disputes in dense areas like the French Riviera.

But what about when the land you use is in joint ownership (a situation where several persons own property together, without physical division of shares)? And what if you are yourself one of the joint owners? The Court of Cassation, in a judgment of 27 May 2009 (No. 08-14.376), gives a clear answer: it is impossible to create a right of way over jointly owned land in favour of land belonging to one of the joint owners. In short, one cannot be both owner of the servient tenement and the dominant tenement, even indirectly.

This judgment, which concerns a right to draw water (right to take water from another's land), sheds light on a fundamental principle of easement law. In this article, I decipher for you the facts, the reasoning of the judges and the practical consequences for owners, tenants and property professionals, with concrete examples in Le Cannet and Vallauris.

The facts: a story like many that happen every day

Imagine the situation: Mr. X and Mrs. Y are joint owners of a plot in Vallauris, plot B 1122. On this plot there is a water source (a well). Mr. X, who also owns the neighbouring plot B 1125, uses this well to water his garden. One day, Mrs. Y, tired of seeing Mr. X draw water without her consent, asks him to stop. Mr. X then invokes a right to draw water (right to take water from another's land) which he claims exists in favour of his plot B 1125, burdening the jointly owned plot B 1122.

The conflict arises: Mr. X argues that the easement was created by a prior sale deed, while Mrs. Y contests its existence and, above all, its validity. The case is brought before the court, then on appeal. The Court of Appeal rules in favour of Mrs. Y: it refuses to recognise the easement. Mr. X appeals to the Court of Cassation.

Before the Court of Cassation, Mr. X argues that the right to draw water is valid because it benefits a plot (B 1125) of which he is the sole owner, while the servient tenement (B 1122) is in joint ownership with Mrs. Y. According to him, the owners are different: him on one side, the joint ownership on the other. But the Court of Cassation does not see it that way.

The reasoning of the court — dissected

The High Court dismisses the appeal and confirms the Court of Appeal's judgment. Its reasoning is clear: an easement (a real right appurtenant to land) requires, by definition, that the servient tenement and the dominant tenement belong to different owners. This is the principle set out in Article 637 of the Civil Code (the text which defines an easement as a charge imposed on one piece of land for the use and benefit of another piece of land belonging to a different owner).

However, in this case, Mr. X is both a joint owner of the servient tenement (B 1122) and the sole owner of the dominant tenement (B 1125). It is therefore impossible to create an easement, because that would amount to creating a right over his own property. Note, however, that the Court does not simply rely on a literal reading. It clarifies that joint ownership does not create a separate legal entity; each joint owner owns a share of the whole, which includes the servient tenement. Thus, Mr. X, as a joint owner, is a co-owner of the servient tenement. The rule "no one can have an easement over his own property" therefore applies.

What few people know is that this solution is consistent in case law. It is based on the idea that an easement is a real right carved out of ownership, which can only exist between two distinct estates. The Court of Cassation has already had occasion to reiterate this, for example in a judgment of 19 January 1993 (No. 91-10.867) concerning a right of way.

undefined, I have encountered cases where joint owners thought they could organise "family" easements among themselves without formality. This is a mistake: as long as the joint ownership lasts, no easement can be created in favour of one of the joint owners over the jointly owned property. It is necessary first to exit the joint ownership (by partition, sale, etc.) for the easement to become possible.

What this changes for you — concretely

This decision has direct implications for several categories of people:

• Joint owners: If you are in joint ownership with others (for example, after an inheritance), you cannot, alone, grant a right of way or right to draw water over the jointly owned property for your own benefit. Any attempt would be void. You must obtain the agreement of all joint owners, or, if you want a personal right, use a lease or a temporary occupation agreement.
• Purchasers: Before buying a property, check whether the seller is in joint ownership. If an easement is mentioned in the deed in favour of a joint owner, it could be challenged. Concrete example in Vallauris: a building plot is sold with a right of way in favour of the neighbour, but the seller was in joint ownership with that neighbour. The deed is risky: the neighbour (a joint owner) cannot benefit from the easement. You could end up without access.
• Tenants: You are not directly concerned, but if your landlord is in joint ownership and grants you a right of way over a jointly owned plot, this right could be challenged by the other joint owners. Prefer a written lease clearly mentioning the ancillary rights.
• Property professionals: Notaries, estate agents, you must be vigilant when drafting deeds. An easement created in joint ownership is a potential hidden defect. In Le Cannet, I saw a property developer cancel a sale because the promised right of way was not valid due to lack of unanimous agreement of the joint owners. The cost: several tens of thousands of euros in damages.

If you are in this situation, you must act quickly. The limitation period for challenging an irregular easement is 30 years from its creation, but it is better not to wait. Legal costs can range from €3,000 to €10,000 depending on complexity.

Four tips to avoid this type of dispute

• 1. Have the legal situation of the servient tenement checked before any acquisition. Ask the notary for a statement of easements and a check for joint ownerships. In Le Cannet, a couple discovered after purchase that the access path was in joint ownership with three cousins. They had to negotiate a paid right of way.
• 2. In case of joint ownership, formalise any agreement between joint owners in writing. Even if an easement is impossible, you can enter into an occupation agreement or a fixed-term lease. This avoids oral conflicts.
• 3. Before building or developing, consult a lawyer solicitor. A simple boundary survey can reveal hidden easements. The cost of a consultation (around €150-200) is negligible compared to a lawsuit.
• 4. If you are a joint owner and wish to use the jointly owned property, propose an amicable partition. Exiting the joint ownership allows valid easements to be created between the lots. In Vallauris, two brothers partitioned a piece of land: one received the part with the well, the other a right to draw water by notarial deed. Problem solved.

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Further analysis: related case law and developments

The Court of Cassation has already ruled in the same way on several occasions. For example, in a judgment of 3 June 1998 (No. 96-17.053), it held that a right of way cannot be created over jointly owned land in favour of a joint owner heir, because there is a merger of the qualities of owner of the servient tenement and the dominant tenement. This position is consistent.

A recent development concerns the possibility of creating an easement "by prior owner's deed" (an easement created by a single owner who then divides his land): what if the single owner was in joint ownership with himself? The answer is no, because joint ownership is not a separate legal entity. The trend of the courts is therefore very protective of the integrity of joint ownership: no joint owner can, alone, burden the common property with an easement, even for his own benefit.

For the future, it is advisable for joint owners to use divided ownership (usufruct, bare ownership) or conventional easements after partition. The case law is unlikely to change on this principle, as it is rooted in the wording of the Civil Code.

Key points to remember

FAQ:

Q: Can I create a right of way over land I own jointly with my brother, to access my house?
A: No, because you are yourself an owner of the servient tenement (as joint owner). The easement requires different owners. You must either obtain the agreement of all joint owners for personal use (via a lease), or exit the joint ownership.

Q: What if my neighbour uses my jointly owned land without my consent, claiming to have an easement?
A: You can challenge this easement in court, because it is void if it benefits a joint owner. Act quickly to avoid acquisitive prescription (30 years).

Q: What are the time limits for taking action?
A: An action to annul an easement is subject to a 30-year limitation period from its creation. But for a continuous and apparent easement, acquisitive prescription may operate in favour of the neighbour if he has used it for 30 years in a peaceful, continuous and open manner.

Q: Can a notary draft an easement in joint ownership?
A: No, a notary must refuse because the deed would be void. If a notary has done so, you can bring a claim for professional negligence.

Q: How much does a court action to challenge an easement cost?
A: Expect between €2,000 and €8,000 in solicitor's fees, plus court costs. A preliminary consultation (€45 with Maître Zakine) can help you assess your chances.

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