Right of Way: Do Underground Pipelines Require Specific Authorisation?

Imagine you own a beautiful villa in Grasse, nestled in the fragrant hills. Your land is landlocked (meaning without direct access to a public road), but you benefit from a right of way (a right to cross the neighbouring land) to access your property. You undertake renovation works and wish to connect your house to the water, electricity, and sewage networks. Naturally, you think you can run these pipelines under the path you already use. But is it really that simple?

This question, much more common than one might imagine, arises regularly in our region, where many older properties in Grasse or Mougins present landlocked situations. Owners often assume that the right of way automatically includes the right to install underground infrastructure. However, the legal reality is more nuanced, as an important decision by the Court of Cassation has reminded us.

This decision, rendered in 2010, provides a clear answer to this everyday query. It specifies the exact limits of a right of way and the necessary conditions to include underground installations. Without revealing too much now, remember this: access on foot or by vehicle does not necessarily mean the right to dig to run pipes.

The Facts: A Story as Common as Any

Mr. Dupont, owner of a landlocked plot in the Parcs neighbourhood in Grasse, benefited from a right of way over his neighbour Mr. Martin's land to access the departmental road. This right of way had been established long ago, probably by implied grant (i.e., created tacitly by the configuration of the premises upon division of a property). Mr. Dupont undertook works to make his house habitable year-round, requiring connection to public water, electricity, gas, and sewage networks.

Logically, he considered running the pipelines in the subsoil of the right of way's area (the strip of land on which the right of way is exercised). Mr. Martin firmly opposed this, arguing that the right of way only granted him the right to pass, not to install underground works. The conflict escalated quickly: Mr. Dupont considered these connections essential for habitation, while Mr. Martin feared damage and future constraints for his own land.

Before the court of first instance, Mr. Dupont prevailed. The judges considered that the right of way, necessary for the normal use of the landlocked plot, logically implied the possibility of carrying out connection works to the networks. The court of appeal confirmed this position, considering that water, gas, electricity, and telephone supply were indispensable for habitation. But Mr. Martin did not intend to stop there and lodged an appeal to the Court of Cassation.

The judicial twist then took a decisive turn. The Court of Cassation, seized of the case, would question what seemed a practical obviousness: does a right of way automatically allow the installation of pipelines? The answer, you may guess, was not what Mr. Dupont expected.

The Court's Reasoning — Analysed

The Court of Cassation, in its judgment of 8 April 2010, quashed the court of appeal's decision. Its reasoning rests on a fundamental distinction between the right of way itself and the underground installations that might accompany it. The magistrates recalled the principle stated in Articles 686 and 691 of the Civil Code: servitudes (charges imposed on land for the benefit of another land) are strictly defined by their constitutive title (the deed that creates them).

In other words, a right of way only confers the right to run pipelines in the subsoil if the title establishing this right of way explicitly provides for it. The court of appeal had considered that the right of way by implied grant necessarily implied that the passage be freed to allow connections to the networks, as these were indispensable for habitation. The Court of Cassation ruled that this reasoning violated the aforementioned texts.

In short, the supreme judges considered that practical utility—even obvious—cannot extend a servitude beyond what its title provides. If the right of way was created solely for the passage of persons and vehicles, it cannot be extended to underground pipelines without the agreement of the owner of the servient land (the land that bears the servitude). The Court emphasised that nothing in the case file allowed asserting that the right of way in dispute had been created originally with this extension.

What few people know is that this decision fits into consistent case law: servitudes are interpreted strictly. One cannot give them a broader scope than what was initially agreed or established. In this case, the Court of Cassation recalled this fundamental principle, even in the face of a practical necessity argument that seemed strong.

What This Changes for You — Concretely

But what exactly does this change for property owners, tenants, and real estate professionals? Let's take concrete examples. If you own a landlocked plot in Mougins and benefit from a right of way, you cannot assume that you automatically have the right to bury pipelines there. Before undertaking works, you must check the title of the right of way: does it explicitly mention underground installations?

If you are purchasing a property with a right of way, this decision concerns you directly. When buying a villa in Grasse for €850,000, for example, you must carefully examine existing servitudes. A right of way without mention of pipelines could make certain future developments impossible, thus diminishing the value of your property. undefined, I have encountered cases where purchasers discovered this limitation too late, engaging costly procedures to regularise the situation.

For tenants, the impact is indirect but real. If your landlord cannot properly connect the dwelling to the networks due to a restrictive servitude, you might face comfort issues or even a lack of habitability. As for property developers, this decision imposes increased vigilance when purchasing building land: an insufficiently drafted right of way can block an entire project.

However, beware: this decision does not mean that underground pipelines are always prohibited. It simply reminds that they require specific authorisation, either in the initial title of the servitude, or by a subsequent agreement with the owner of the servient land. Without this agreement, you risk legal action for abnormal neighbourhood disturbance, potentially with an order to remove the installations and pay damages.

Four Tips to Avoid This Type of Dispute

• Systematically check the title of the servitude before undertaking works involving underground pipelines. Consult the notarial deed or judgment that established it.
• Negotiate a written addendum with the owner of the servient land if the existing servitude does not provide for underground installations. Have it authenticated by a notary to give it probative force.
• Anticipate this issue when purchasing a property. Ask your notary to verify the exact extent of servitudes and negotiate their extension if necessary before signing the final deed.
• Document verbal agreements precisely if they already exist. Even informal, written exchanges (emails, letters) can constitute evidence in case of subsequent dispute.

Deep Dive: Related Case Law and Evolutions

This 2010 decision fits into consistent case law of the Court of Cassation. Already in 1995 (judgment no. 93-16.902), the high court had recalled that servitudes are interpreted restrictively and cannot be extended beyond what their title provides. More recently, in 2018 (judgment no. 17-19.316), it confirmed this principle by ruling that a right to light (right to maintain an opening overlooking the neighbouring land) did not allow leaning a construction against it without specific authorisation.

The trend of the courts is clear: they refuse to create or extend servitudes by extensive interpretation, even when it seems justified by practical considerations. This legal rigour protects the property right of the servient land against encroachments not initially foreseen. For the future, this means that drafting deeds creating servitudes will need to be even more precise, anticipating modern needs like network connections or fibre optic passage.

How to react to this rigorous case law? By professionalising the drafting of servitudes. Notaries and specialised lawyers must now systematically include clauses explicitly providing for common underground installations, thus avoiding future disputes. This evolution is particularly important in regions like ours, where growing urbanisation multiplies complex neighbourhood situations.

Key Points to Remember

• A right of way does NOT automatically permit running underground pipelines — the title of the servitude must explicitly provide for it.
• Always verify the exact extent of your servitudes before undertaking works or purchasing a property.
• In case of doubt, consult a legal professional — a prior check can avoid years of judicial procedure.
• Verbal agreements are not enough — any extension of a servitude must be formalised in writing, ideally by authentic deed.
• Case law is consistent on this point — do not count on extensive interpretation by the courts.

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