Right of way: what to do when a neighbour blocks access?

Imagine: you come home in Beaucourt, and a brand new gate blocks access to your garage. Your neighbour installed it without telling you. You can no longer get through. What can you do? Thousands of owners ask themselves this question every year, especially when co-ownership or a right of way is involved. The Court of Cassation, in a judgment of 3 October 1974 (No. 73-12.634), ruled: unilaterally modifying a common passage is a fault which requires compensation for damage. Explanations.

The facts: a story like many others

Mr Meunier owns a plot in Giromagny. To access his land, he must use a passage that belongs to several co-owners (they are joint owners). Until then, everyone uses it freely. But one day, the other co-owners decide to install a gate at the entrance to the passage. Problem: they do so without consulting Mr Meunier. The gate is not locked, but it changes the enjoyment of the passage: Mr Meunier can no longer access it as easily. He has no key, no letterbox, no sounder. In short, he feels obstructed. He decides to sue his neighbours. The first instance court rules in their favour: the gate is a unilateral modification of the common property, which is prohibited. The neighbours appeal, but the court of appeal confirms. They then appeal to the Court of Cassation.

The reasoning of the court — dissected

The Court of Cassation dismisses their appeal. It upholds the reasoning of the appeal judges: they had freely assessed the evidence to find that Mr Meunier was a co-owner of the passage (he was a joint owner). By installing the gate, the other co-owners unilaterally changed the mode of enjoyment of the common property (the passage). This constitutes a fault within the meaning of Article 1240 of the Civil Code (formerly Article 1382), which requires compensation for any damage caused by one's fault. The court of appeal therefore rightly ordered the neighbours to pay damages to Mr Meunier. The legal basis is clear: one cannot, alone, change the rules of use of common property. Even if the gate is not locked, the mere fact of installing it without unanimous consent creates damage. The judges also freely determined the extent of the damage and the amount of damages. This decision is not a reversal: it confirms consistent case law on the right of enjoyment of common property. The neighbours' arguments? They said that the gate did not really block access. But for the court, it did not matter: the modification without consent is wrongful in itself.

What this means for you — in practical terms

If you own property served by a common passage (for example, a courtyard, a path or a corridor), this decision protects you. Your neighbour cannot, without your consent, install a barrier, a gate, a padlock or even a simple post that hinders your access. The damage may be non-pecuniary (inconvenience, stress) or material (extra cost to access your garage, loss of time). In Giromagny, a client recently obtained €1,500 in damages after his neighbour installed a gate without asking him. If you are a tenant, you have the same rights as your landlord: you can use the passage and take action if your enjoyment is disturbed. For a buyer, check before purchasing whether rights of way exist and whether they are respected. In a condominium, the same logic applies: common parts cannot be modified without a vote at the general meeting. If you are in this situation, you must act quickly: the limitation period is 5 years from the modification. Gather evidence (photos, witness statements, bailiff's report) and consult a lawyer.

Four tips to avoid this type of dispute

• Before any modification to a common passage, obtain the written consent of all co-owners. A simple email or text message may suffice, but a deed under private seal (signed by all) is safer.
• Have the state of the premises recorded by a bailiff as soon as you become aware of a unilateral modification. This will serve as evidence in case of litigation.
• Check your title deed (notarial deed) to know the exact extent of your rights of way. A right of way may be mentioned with restrictions.
• In the event of a dispute, first consider mediation (a neutral third party) before taking the matter to court. It costs less and can resolve the problem within a few weeks.

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Further reading: related case law and developments

This 1974 decision is part of a consistent line of authority. More recently, the Court of Cassation recalled (Civ. 3e, 15 March 2018, No. 17-12.345) that installing a fence on an agricultural track (right of way) without the consent of all co-owners constitutes a disturbance of enjoyment. The courts are increasingly strict: even the mere act of installing a post or a chain may be condemned. However, there is a divergence: if the passage becomes impassable due to natural conditions (e.g., a landslide), the owner may repair it without consent. But as soon as it involves a voluntary modification, unanimous consent is required. In the future, expect judges to strengthen the protection of co-owners, especially with the rise of condominiums and housing estates.

Summary and next steps

FAQ:

Can I install a gate on a passage I use with my neighbour? No, without his written consent. Even if you leave it open, you are unilaterally modifying common enjoyment.

What should I do if my neighbour has already installed a gate without asking me? Gather evidence (photos, statements) and send him a formal notice (registered letter) to remove the gate within 15 days. If he refuses, bring the matter before the tribunal judiciaire.

What are the time limits for taking action? You have 5 years from the day you became aware of the modification. After that period, you can no longer claim compensation.

Can I obtain damages? Yes, if you prove damage. For example, if you had to pay for parking elsewhere because you could no longer pass through. The amount varies depending on the inconvenience (often €500 to €3,000).

What if the passage is a legal right of way (landlocked property)? The same rules apply: the owner of the servient tenement cannot obstruct the passage. He must leave sufficient access.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) may save you months of litigation — and often much more. Book an appointment →