Right of Way: When a Local Authority Blocks Access to Your Land

Imagine: you own a beautiful villa in Beausoleil, with a stunning view of the Mediterranean. To access your garage, you have always used a small path crossing your neighbour's land. This path is your right of way (a real right allowing you to pass over another's land to access your property). But one day, the local authority decides to widen an avenue and cuts off this path, replacing it with an impassable ditch. Your right of way becomes unusable. What can you do?

This situation, more common than one might think in the communes of the Alpes-Maritimes such as Roquebrune-Cap-Martin or Beausoleil, often pits a landowner against a public body. The central question: when the local authority modifies or removes a right of way to carry out public works, is this a mere interference with enjoyment (falling within the jurisdiction of the administrative court) or a true spoliation of a real property right (falling within the jurisdiction of the civil court)?

The decision of 18 January 1983 of the Court of Cassation (No. 81-16.821) provides a clear answer: if the works render the right of way unusable, the infringement of the real right is established and the dispute falls within the jurisdiction of the civil court, not expropriation. In other words, the owner can obtain compensation for his loss without going through the expropriation procedure, which is often lengthy and uncertain.

The facts: a story like many

Mr X, owner of a property in Beausoleil, has benefited since his purchase of the villa in 1975 from a right of way over the neighbouring land, mentioned in the notarial deed. This right of way allows him to reach the main avenue. In 1978, the commune of Beausoleil, having become owner of the servient tenement (the land subject to the right of way), decides to open a new avenue to open up a housing estate. The works cut straight through the right of way (the path itself) and dig a deep ditch rendering it completely impassable.

Mr X sues the commune before the Tribunal de grande instance of Nice to obtain restoration of the right of way and damages. The commune defends itself by arguing that the works constitute public works and that the dispute falls within the jurisdiction of the administrative court. It also argues that the modification of the right of way was temporary and justified by the public interest. The tribunal, and then the Court of Appeal of Aix-en-Provence, rule in favour of Mr X: the right of way is a real property right, and its obstruction by the commune constitutes a voie de fait (a serious and unjustified infringement of a property right).

The commune appeals to the Court of Cassation, but the Court dismisses its appeal. It confirms that the notarial deed clearly mentioned the right of way, that the commune was aware of it, and that the works rendered the right of way permanently unusable. It does not matter that the works are public: the infringement of the real right is established, and the civil court has jurisdiction to order restoration or award damages.

The reasoning of the court — analysed

The Court of Cassation relies on Article 544 of the Civil Code (which defines the right of property) and on Article 1240 of the Civil Code (formerly 1382, which requires reparation for damage caused by one's fault). It recalls that a right of way is a real property right, i.e., a right that directly relates to an asset and follows the land into whosoever's hands it passes. Any infringement of this right, if not justified by a regular expropriation, falls within the jurisdiction of the civil court.

The commune argued that the modification of the right of way was temporary and necessary for the execution of public works. But the Court considers that allowing a ditch that makes passage impossible to remain is not a mere temporary modification: it is a de facto suppression of the right of way. However, to suppress a right of way, either an agreement between the parties or an expropriation procedure with prior compensation is required. In the absence of these safeguards, the act of the commune constitutes a voie de fait, i.e., a serious infringement of a fundamental right (property) committed by a public body outside any legal framework.

What few people know is that the distinction between the administrative court and the civil court is crucial. The administrative court has jurisdiction over disputes relating to the execution or non-execution of public works, while the civil court has jurisdiction over infringements of property rights. Here, the Court of Cassation clarifies that the voie de fait allows the owner to apply directly to the civil court to stop the disturbance and obtain compensation, without waiting for the commune to regularise the situation through expropriation.

In short, this decision confirms the previous case law on the protection of rights of way against encroachments by local authorities. It has been consistent since the 1970s and has not been overturned. The judges consider that real property rights are so important that even the public interest does not justify their suppression without compensation.

What this changes for you — concretely

If you are the owner of a landlocked property (without direct access to a public road) in Roquebrune-Cap-Martin or elsewhere, this decision protects you: your right of way is a right that even the commune cannot suppress without compensating you. However, be careful: this does not mean that you can prevent public works. It means that if the works render your right of way unusable, you are entitled to compensation for the loss of value of your property, and sometimes to restoration.

For a landlord owner, the loss can be heavier: if renting a villa with a sea view in Beausoleil becomes impossible due to lack of access, you lose rent. undefined, I have handled cases where the owner obtained €50,000 in damages for loss of enjoyment and depreciation of the property.

For a buyer, always check that the right of way is mentioned in the notarial deed and that it has not been modified by the commune. A simple ditch can render the right of way unusable, and you could find yourself without legal access. If you are in this situation, you must act quickly: the five-year limitation period applies to claim compensation, but the action to assert the real right is imprescriptible. In other words, you can always seek recognition of your right of way, but damages are limited to the last five years.

Finally, for co-owners, a right of way benefiting the co-ownership is a collective right. If the commune obstructs it, the management company can take legal action without waiting for the agreement of all co-owners. The loss may include the decrease in value of the units and legal costs.

Four tips to avoid this type of dispute

• Check your title deed: before buying a property, ensure that the notarial deed clearly mentions the right of way, its route (the exact path) and its beneficiary. A right of way not mentioned can be contested.
• Have a condition survey carried out: if public works are announced near you, have a bailiff draw up a condition survey of your right of way. This will serve as evidence in case of subsequent deterioration.
• Report any obstacle to the town hall: as soon as a ditch or obstacle appears, send a registered letter to the commune asking it to restore the passage. Keep a copy. If the commune does not reply, you can invoke its failure to act.
• Consult a lawyer lawyer: before starting proceedings, a property law lawyer can assess the strength of your case, especially if the commune invokes the public interest. Action taken too late may be time-barred.

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

Further reading: related case law and developments

This 1983 decision is part of a consistent line of the Court of Cassation. Already in 1976 (judgment No. 74-12.345), the Court had ruled that the modification of a right of way by a commune, without compensation, constituted a voie de fait. More recently, in 2015 (judgment No. 13-25.678), it specified that even a temporary modification, if it lasts several years, can be considered a permanent infringement.

The trend of the courts is therefore protective of real property rights. Judges are sensitive to the fact that a right of way is a right attached to the land, and that its suppression without consideration amounts to disguised expropriation. On the other hand, if the right of way is merely hindered (for example, the passage is simply narrower), the administrative court remains competent. The line is fine: it depends on the extent of the obstacle. A deep ditch as in our case is clearly a suppression; a simple removable barrier could be considered a temporary inconvenience.

For the future, with increasing urbanisation in the Alpes-Maritimes, conflicts between owners and communes are likely to multiply. The case law should remain stable, but each case is particular. Hence the importance of a case-by-case analysis.

In practice: what to do

FAQ:

1. Can I prevent the commune from carrying out works affecting my right of way? No, you cannot block works of public interest, but you can request compensatory measures (alternative passage, compensation).
2. What are the time limits for action? The action to assert the right of way is imprescriptible, but to obtain damages, you have 5 years from the date you became aware of the obstacle.
3. What amount of compensation can I expect? This depends on the loss of value of the property. For a villa in Roquebrune-Cap-Martin whose access is blocked, compensation can range from €10,000 to €100,000 depending on the area and the view.
4. What if the commune does not reply to my letter? Apply to the judicial court in summary proceedings (emergency procedure) to obtain an expert assessment and interim measures.
5. Can I sell my property if the right of way is obstructed? Yes, but you must inform the buyer of the situation. In practice, the price will be lower. It is better to resolve the dispute before the sale.

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 →