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

Imagine: you own a house in Saint-Vincent-de-Tyrosse, in the Landes. To access your garage, you have always used a path that crosses your neighbour's land. One day, he installs a gate, restricts your hours of passage, or simply prohibits access. You find yourself blocked. What can you do? Does the law protect your right of way?

This situation, more common than one might think, raises a central legal question: to what extent can the conditions for exercising a right of way be modified? And above all, how should one react when a party attempts to introduce new claims on appeal, for example to obtain compensation or a modification of the route?

The judgment of the French Supreme Court of 25 February 2016 (no. 14-29.760) answers this essential procedural question: a court of appeal seised of a preliminary objection (a means aimed at having a claim declared inadmissible without examination on the merits) based on the inadmissibility of new claims, or raising it of its own motion, is required to examine it in the light of the exceptions provided for in Articles 564 to 567 of the Code of Civil Procedure. In other words, if the opponent raises that your claim is new on appeal, the judge must check whether it falls within the legal exceptions (for example, to set off a counterclaim, to rebut the opponent's claims, or if it is a consequence of the evolution of the dispute).

The facts: a story like those that happen every day

Mr and Mrs T. are owners of a piece of land (property) in Saint-Vincent-de-Tyrosse. Their property benefits from a right of way (right to pass over the neighbouring land to access the public highway) created by notarial deed. The servient tenement (the land which bears the easement) belongs to Mr and Mrs G. For years, everything goes well: the T. couple use the path to reach their house and garage.

But one day, the G. couple decide to develop their land: they create a car park, install an automatic gate, and restrict the hours of passage. For the T. couple, this is an aggravation of the conditions of exercise of the easement: they can no longer freely access their property. They therefore sue the G. couple before the High Court to restore the easement and restrict the passage to its normal use.

The court rules in their favour. But the G. couple appeal. Before the Court of Appeal, they present new claims: they seek in particular the fixing of compensation for the damage suffered due to the aggravation of the easement. The T. couple then raise a preliminary objection: these claims are new on appeal and therefore inadmissible. The Court of Appeal, without examining this objection, declares the G. couple's claims admissible and partially grants them. Dissatisfied, the T. couple appeal to the Supreme Court.

The reasoning of the court — analysed

The Supreme Court quashes the appeal judgment. It recalls that, according to Article 564 of the Code of Civil Procedure, the parties may not submit new claims to the Court of Appeal unless it is to set off a cross-claim, to rebut the opponent's claims, or when the new claim is a consequence of the evolution of the dispute. Articles 565 to 567 specify these exceptions.

In this case, the Court of Appeal had been seised of a preliminary objection by the T. couple. It was therefore required to examine it. However, it did not do so. The Supreme Court emphasises that the appeal judge must, even of its own motion, raise the inadmissibility of new claims if they do not meet the conditions of the legal exceptions.

This reasoning is in line with consistent case law: respect for the two-tier judicial system and procedural fairness. Each party must be able to know the other's claims from the first judgment, in order to prepare its defence. Allowing new claims on appeal without justification would circumvent this rule.

In other words, this decision does not create a new right, but it reminds appeal courts of a fundamental procedural obligation. undefined, I have encountered cases where property owners in Parentis-en-Born have been faced with claims for compensation on appeal while the initial dispute concerned only the route of the easement. This case law protects them.

What this means for you — concretely

For a landlord: if you are in a dispute with your tenant concerning a right of way, and you win at first instance, the tenant cannot, on appeal, claim compensation for disturbance of enjoyment if this claim was not made from the outset. This saves you from having to respond to surprise claims.

For a buyer: before buying a property burdened with an easement (your land supports the neighbour's passage), check that the notarial deed describes the conditions precisely (width, hours, maintenance). If the neighbour wants to modify them on appeal without having contested them at first instance, he may be declared inadmissible.

For a co-owner in Parentis-en-Born: imagine that your unit is landlocked (without access to the public highway) and you have to pass through the common courtyard. If a co-owner blocks the passage, you sue him. On appeal, he cannot claim a right of light (new claim) unrelated to access. Concrete example: a recent dispute in Parentis-en-Born saw a co-owner attempt to obtain on appeal the right to build a terrace on the easement. The Court of Appeal declared this claim inadmissible, relying on the 2016 case law.

If you are in this situation, you must: keep all notarial deeds, letters, photos, and above all, at first instance, formulate all your claims (removal of the blockage, damages, etc.). Do not wait for the appeal to add them.

Four tips to avoid this type of dispute

• Have a precise description of the easement drafted by a notary: width, route, hours of passage, maintenance. In Saint-Vincent-de-Tyrosse, a poorly drafted deed led to a 3-year conflict between neighbours.
• Regularly photograph the state of the premises: in case of modification (gate, barrier), you will have evidence of the aggravation. Keep dated photos.
• Send a registered letter in case of a problem: before suing, try an amicable settlement. This letter will constitute proof of your approach and may be used in court.
• Consult a lawyer before initiating proceedings: a professional will help you list all your claims from the outset, to avoid being inadmissible on appeal. The cost of a consultation (€45 with Maître Zakine) is negligible compared to years of proceedings.

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

Further reading: related case law and developments

This decision is part of a line of Supreme Court judgments that reinforce the principle of concentration of claims. One can cite the judgment of 10 July 2013 (no. 12-22.244) which held that a new claim on appeal is admissible only if it is an accessory, consequence or complement of the initial claims. The 2016 case law goes further by requiring the judge to examine the preliminary objection of its own motion.

Trend in the courts: judges are increasingly strict about respecting the two-tier judicial system. In the future, one can expect that appeal courts will systematically reject new claims not justified by the evolution of the dispute. For property owners, this is a security: once the judgment is rendered, the opponent cannot come back with new claims without a serious reason.

However, beware: the evolution of the dispute (for example, a new fact occurring after the judgment) may justify a new claim. Example: if the neighbour builds a wall after the judgment, you can request its demolition on appeal.

Checklist before acting

FAQ: 5 practical questions

1. Can I claim damages on appeal if I did not do so at first instance? No, unless the claim is a consequence of the evolution of the dispute (e.g., new damage appearing after the judgment).
2. What should I do if my neighbour blocks my passage and I am in Saint-Vincent-de-Tyrosse? Gather your evidence (photos, witness statements), send a registered letter, then file a claim with the Mont-de-Marsan High Court. Consult a lawyer to list all your claims from the start.
3. What are the time limits for taking action? The action in court for disturbance of an easement is subject to a 5-year limitation period from the day the owner knew or ought to have known the facts. Do not delay.
4. How much does a procedure cost? Lawyer fees vary. An initial consultation with Maître Zakine costs €45. A full procedure can cost between €1,500 and €5,000 depending on complexity. Court costs (bailiff, expert) are additional.
5. Can I obtain compensation if my neighbour has aggravated the easement? Yes, you can claim damages for the harm suffered (loss of enjoyment, adaptation costs). But make this claim at first instance.

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 →