Right of Way: When an Ambiguous Clause Causes You to Lose Your Rights (Civ. 1st, 10 May 1965)

You own a house in Biscarrosse, and your garage opens onto a private cul-de-sac that you have used for years. One day, your neighbour, who owns the dominant tenement (the one benefiting from the right of way), tells you he wants to widen the passage to fit his camper van. You wonder: can he do this without your consent? And if the notarial deed that created the right of way contains an ambiguous phrase about its extinguishment, could the right of way disappear overnight?

This is exactly the kind of question that came before the Court of Cassation on 10 May 1965 (appeal no. 63-11.291). A story about a corridor, neighbours, and above all a clause drafted in such ambiguous terms that it almost caused a property owner to lose his right of way. But the highest court ruled: when a clause is clear and precise in creating the right of way, another ambiguous clause cannot extinguish it. In other words, a certain right cannot be destroyed by vague words.

In this article, I will tell you about this case as if you were there, break down the judges' reasoning, and above all give you practical advice to prevent your own right of way from becoming a headache. Whether you are a property owner in Mimizan, a buyer of rural land, or a real estate professional, these rules affect you.

The Facts: A Story Like Any Other

Imagine a building in Biscarrosse, in the Landes region, where two adjoining owners must share a corridor. Mr. A, owner of a flat, needs to pass through this corridor to access his cellar. His neighbour, Mr. B, owns the corridor (the servient tenement — the one bearing the right of way). In 1950, a notarial deed was signed between them: it creates a right of way in favour of Mr. A, and also sets out the conditions under which this right of way could be extinguished. So far, everything is clear. But the notary drafted the extinction clause in such vague terms that, fifteen years later, no one agrees on its meaning.

In 1963, Mr. B decides to block the passage, arguing that the right of way is extinguished by virtue of this ambiguous clause. Mr. A sues him to have his right recognised. The first instance court rules in favour of Mr. B, finding the deed ambiguous and that the parties' intention was to extinguish the right of way. Mr. A appeals, but the Court of Appeal upholds the judgment. He then appeals to the Court of Cassation.

Before the Court of Cassation, Mr. A argues that the clause creating the right of way is clear and precise, while the extinction clause is ambiguous. Consequently, he argues, the lower courts should have applied the clear clause and not relied on the ambiguous clause to extinguish the right of way. The Court of Cassation agrees with him: it quashes the appeal judgment and remits the case to another court. In short, a clearly established right of way cannot be nullified by an obscure clause.

The Reasoning of the Court — Analysed

The Court of Cassation relies on a fundamental principle of contract law and servitudes: in claris non fit interpretatio (what is clear needs no interpretation). Essentially, when a deed contains both a clear clause and an ambiguous clause, the judges must give effect to the clear clause and cannot use the ambiguity to contradict it.

In this case, the 1950 deed created the right of way in clear terms: "Mr. A shall have the right to pass over the corridor belonging to Mr. B to access his cellar." Then it added a phrase about extinction, but this was drafted so imprecisely that it could mean either immediate extinction or extinction subject to a condition. The lower courts chose to favour this ambiguous clause to declare the right of way extinguished. The Court of Cassation criticises them for having "refused to apply the clear and precise clause" and for having relied on an "ambiguity arising from the juxtaposition" of the two clauses.

In other words, the Court reminds that the interpretation of a deed must give priority to clear provisions. If a clause is unambiguous, it cannot be set aside in favour of another that is vague. This is a rule of common sense, but it has important practical consequences: it protects the legal certainty of rights of way created by notarial deed.

This decision is not a departure: it confirms a consistent line of case law from the Court of Cassation since the 19th century. But it is particularly interesting because it shows that even an extinction clause can be neutralised if it is too vague. undefined that to extinguish a right of way, a clause as clear as the one that created it is required.

What This Means for You — Practically

For a landlord: if you let a property burdened by a right of way (e.g., an access path), you must ensure that the notarial deed is drafted without ambiguity. If the extinction clause is vague, the tenant or neighbour might attempt to challenge the right of way. undefined, I have come across cases where a property owner in Mimizan lost access to his land because the sale deed mentioned a "right of way until the construction of a wall" without specifying whether the wall was to be built by the owner or the neighbour. Result: years of litigation.

For a purchaser: before buying a property, always check the deed of right of way. If you see an extinction clause that seems ambiguous (e.g., "the right of way shall cease when the need ends"), ask a notary or lawyer to interpret it. A verification cost of €200 to €500 can save you a dispute costing several thousand euros.

For a co-owner: in a co-ownership, rights of way between units are common (passage, pipes). If the co-ownership rules contain an ambiguous clause on the extinction of a right of way, know that the courts will apply the clear clause that creates it. Do not be intimidated by a neighbour who invokes a vague clause to prevent you from passing.

In the event of a dispute, court proceedings can take 12 to 24 months for a first instance, and legal fees range from €1,500 to €5,000 depending on complexity. Prevention is better than cure.

Four Tips to Avoid This Type of Dispute

• Have your deeds of right of way drafted by a professional: a notary or lawyer specialising in property law will avoid ambiguities. Do not copy a model found on the internet, as each situation is unique.
• Require an extinction clause as clear as the creating clause: if you provide that the right of way may be extinguished, specify the exact conditions (date, event, bailiff's report). For example: "The right of way shall be extinguished on 1 January 2030, or if the beneficiary ceases to use the passage for two consecutive years."
• Keep all documents relating to the right of way: notarial deed, plans, correspondence. In case of doubt, these elements will help prove the parties' intention.
• In case of dispute, do not make the decision alone: consult a lawyer before blocking a passage or invoking an extinction clause. An unfounded attempt at extinction can cost you dearly in damages for neighbourhood disturbance.

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

Further Reading: Related Case Law and Developments

This 1965 decision is part of a line of judgments protecting the legal certainty of rights of way. For example, in a judgment of 13 January 1959 (Civ. 3rd), the Court of Cassation had already held that a right of way established by deed can only be extinguished by an express and unambiguous clause. More recently, a judgment of 4 February 2021 (Civ. 3rd, no. 19-24.527) reiterated that the ambiguity of an extinction clause cannot prevail over the clear clause that creates the right of way.

The trend of the courts is therefore consistent: one does not trifle with the clarity of deeds. If you are the owner of the servient tenement (the one bearing the right of way), know that it is very difficult to extinguish a right of way without an explicit clause. Conversely, if you are the beneficiary, the case law protects you against attempts at abusive extinction.

For the future, the drafting of notarial deeds tends to become standardised with model clauses, but ambiguity remains a risk. Digitalisation of deeds could improve traceability, but nothing will replace careful drafting.

What You Absolutely Must Remember

1. What to do if your neighbour challenges your right of way?
Do not block anything. Gather the notarial deed and any document proving the existence of the right of way. Consult a lawyer to check whether the extinction clause is ambiguous. If it is, you have a strong chance of winning.

2. Can I lose my right of way if I do not use it for a certain time?
In law, a right of way can be extinguished by non-use for 30 years (Article 706 of the Civil Code). But if the deed provides a shorter period, it must be clear. Note: the 1965 case law only concerns the interpretation of clauses, not non-use.

3. What if the deed contains two contradictory clauses?
The clear clause prevails over the ambiguous clause. If both are clear but contradictory, the common intention of the parties must be sought (former Article 1156 of the Civil Code).

4. How much does it cost to bring legal action to have a right of way recognised?
Expect between €1,500 and €5,000 in legal fees, plus bailiff and expert costs if any. Legal aid may be available subject to income conditions.

5. Can a preliminary sale agreement create a right of way?
Yes, but it must be confirmed by notarial deed. If the preliminary agreement contains an ambiguous clause, it will be interpreted by the judge. It is better to have it clarified before signing.

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 →