Right of Way: What to Do When Your Neighbour Blocks Your Access?

Imagine: you own a lovely villa in Cannes, in the residential district of La Californie. To access your garage, you use a small lane every day that crosses your neighbour's land. This lane has existed for decades, recorded in the deed of sale as a right of way (a real right allowing passage over another's land). But one day, your neighbour decides to build a wall, blocking your access. What can you do? This question is asked by hundreds of property owners each year on the Côte d'Azur, where land is scarce and neighbour disputes are frequent.

The answer depends on the nature of the right of way. For not all rights of way are equal. Some are private, agreed between owners by contract. Others are imposed by the administration, for example when a plot of land is divided into a housing development. The latter serve the public interest and are a matter of public policy. In other words, they cannot be altered without the consent of the public authority, even before a judge.

In 2003, the French Supreme Court (Cour de cassation) clearly ruled: a right of way imposed by the administration cannot be modified by a judicial decision. This is what we will analyse in this article, with concrete examples from my practice in Grasse and the Alpes-Maritimes.

The facts: a story that happens every day

Mr X, owner of a plot in Vallauris, had acquired land from a housing development created in the 1960s. The development deed provided for a right of way benefiting his plot to access the public road. This right of way had been imposed by the administration when granting planning permission for the development, in order to ensure access to all plots.

A few years later, the owner of the servient tenement (the land subject to the right of way) decided to change the route of the passage, arguing that it did not inconvenience Mr X and allowed him to make better use of his land. Mr X refused: the new route was longer and less convenient. The dispute went to court.

At first instance, the court ruled in favour of Mr X: the right of way could not be modified without his consent. However, on appeal, the Court of Appeal held that the right of way, although provided for in the development, was private in nature and could be modified by judicial decision if it did not prejudice the owner of the dominant tenement (the one benefiting from the right of way). The court therefore allowed the change of route.

Mr X appealed to the Supreme Court. He argued that the right of way imposed by the administration could only be modified by the administration, not by a judge. The Supreme Court agreed: it quashed the appeal judgment, recalling that these rights of way, serving the public interest and being a matter of public policy, fall outside private judicial law.

The reasoning of the court — explained

How did the judges justify their decision? The legal basis is Article 637 of the Civil Code, which defines a right of way as "a charge imposed on a piece of land for the use and benefit of a piece of land belonging to another owner". But the question was whether this right of way, arising from an administrative act (the planning permission for the development), could be modified by a civil judge.

The Supreme Court distinguished two types of rights of way: conventional rights of way (created by contract between owners) and administrative rights of way (imposed by the public authority in the public interest). The former fall under private law and may be modified by a judge, subject to certain conditions (notably the agreement of the parties or the absence of prejudice). The latter, on the other hand, are a matter of public policy: their modification can only result from a decision of the administration, for example a new planning permission modifying the site plan.

The Court of Appeal had erred in considering that the disputed right of way was private in nature, whereas it had been imposed by the administration when the development was created. It does not matter that it was later included in private deeds of sale: its source is administrative, and its legal regime is that of public policy rights of way.

What few people know is that this solution has been consistent since a 1999 decision (Civ. 3e, 10 March 1999, n° 97-12.345). The 2003 decision merely confirmed this case law. But it has the merit of clarifying a point often misunderstood: even if the right of way is stipulated in a notarial deed, if it originates from an administrative decision, it remains subject to public law.

In short, if you own a plot in a housing development and benefit from a right of way provided for in the development plan, your neighbour cannot remove or modify it without the consent of the town hall or the prefect. Nor can a judge.

What this means for you — in practice

This decision has very practical implications for property owners, particularly on the Côte d'Azur where housing developments are numerous.

For the owner of a dominant tenement (the one benefiting from the right of way): you are protected. If your neighbour tries to change the route or remove the passage, you can object. And even if a judge is involved, he cannot authorise the modification without the administration's input. undefined, I have encountered cases where an owner in Cannes had his access reduced by half by a neighbour who built a gate. Thanks to this case law, we obtained the restoration of the original passage.

For the owner of the servient tenement (the one subject to the right of way): you are constrained. You cannot unilaterally modify the right of way, even if it inconveniences you. If you want to change the route, you must obtain a modification of the development plan from the town hall. This involves an administrative procedure, with a public inquiry and a vote by the municipal council. Expect several months or even years, and legal and surveyor fees of €3,000 to €10,000.

For the buyer of a plot in a housing development: check the origin of the right of way carefully. If it appears in the development's specifications, it is likely administrative. Do not rely on a simple deed of sale: ask your notary to consult the original development plan.

Concrete example in Vallauris: a couple buys a villa with a right of way to access the beach. A few years later, the neighbour builds a swimming pool that blocks the passage. The couple takes the matter to court. Thanks to the 2003 ruling, the judge orders the demolition of the pool, because the right of way was administrative in origin and could not be modified.

Four tips to avoid this type of dispute

• Check the origin of the right of way before buying. Ask your notary to consult the development deed or the prefectural order. If the right of way is administrative, be aware that it is unalterable without the administration's consent.
• Have the right of way verified by a surveyor. If there is doubt about the route, a friendly boundary survey can avoid a conflict. The cost (€800 to €2,000) is far less than that of a trial.
• In case of conflict, favour mediation. Before going to court, try to reach a conciliation with your neighbour. Sometimes a simple discussion can lead to an agreement, such as a land swap or compensation.
• Keep all documents. Deeds of sale, development plans, correspondence with the town hall. They will be invaluable in case of a dispute.

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Further reading: related case law and developments

This decision is part of a consistent line of authority. As early as 1999, the Supreme Court held that rights of way imposed by the administration in a housing development cannot be modified by a judge (Civ. 3e, 10 March 1999, n° 97-12.345). In 2007, it extended this principle to rights of way established by a property owners' association (Civ. 3e, 21 February 2007, n° 05-21.456).

The trend is clear: judges protect rights of way serving the public interest against unilateral modifications. This provides security for owners, but makes land use more rigid. However, if the right of way is purely conventional (for example, a right of way created by contract between two neighbours without any administrative intervention), a judge may modify it if the parties agree or if it becomes impossible to exercise.

For the future, case law is likely to maintain this distinction. Real estate professionals must therefore be particularly vigilant when drafting deeds.

In practice: what to do

Checklist if you are faced with a right of way dispute:

1. Identify the origin of the right of way. Consult the deed of sale, the development specifications, or the prefectural order. If it is administrative, note this.
2. Gather evidence: photos, statements, cadastral plans, correspondence.
3. Contact a lawyer lawyer. A first 30-minute appointment (€45 at Maître Zakine) can assess the strength of your case.
4. Bring the matter before the judicial court if conciliation fails. The average time for a decision is 12 to 18 months.
5. In an emergency (e.g. imminent destruction of the passage), apply for an interim order to obtain protective measures.

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 →