Right of Way (Servitude de passage): When the Judge Must Refer to Your Final Submissions

Imagine you own a house in Parentis-en-Born, in the heart of the Landes region. You purchased this property a few years ago, with access via a private path that crosses your neighbour's plot. One day, this neighbour decides to fence off their land, blocking your access. You find yourself landlocked (without access to the public highway). What can you do? How can you assert your rights in court?

This situation, unfortunately common in our region where plots are often large and access is sometimes informal, raises a crucial question: how must the judge handle your case for your right of way (servitude) to be recognised? The answer lies not only in the substance of the law but also in the form of the procedure.

A decision by the Cour de cassation, the highest French judicial court, dated 7 January 2009, provides essential clarification. It reminds us of a procedural rule that is often overlooked but decisive: the judge must succinctly set out the respective claims of the parties and, if they can only rule on the final submissions filed, they must refer to them with an indication of their date. In short, this means that your solicitor must file clear and up-to-date submissions, and the judge must explicitly take them into account. But what exactly does this change for you, as a property owner, tenant, or real estate professional?

The facts: an everyday story

Let's take the example of Mr Dupont and Mr Martin, two neighbouring property owners in Biscarrosse. Mr Dupont owns a landlocked plot, with no direct access to the departmental road. For decades, he has used a path that crosses Mr Martin's property to access his land. This right of way (servitude) was established by a notarial deed in 1902, providing for a width of three metres.

Over the years, the plots have been divided, sold, and inherited. Mr Martin, the new owner, considers that this right of way has become unnecessary or excessive. He argues that the division of the land has changed the situation and that access could be via another side. He decides to restrict the passage, then partially obstruct it with a fence. Mr Dupont, feeling aggrieved, initiates legal proceedings to have his right of way recognised and protected.

The case goes before the tribunal de grande instance (court of first instance), then the cour d'appel (court of appeal). The solicitors for both parties file submissions (written documents setting out their arguments and requests) on several occasions, refining their positions as the procedure progresses. Mr Dupont requests confirmation of the servitude and a width of three metres, while Mr Martin argues that the servitude has been extinguished or should be reduced. The cour d'appel, in its judgment, rules on the substance but omits to clearly set out the final claims of the parties and does not explicitly refer to the final submissions filed with their date.

Mr Dupont, dissatisfied with the decision, lodges an appeal (pourvoi) with the Cour de cassation. He invokes a procedural defect: the judge's failure to set out the claims and to refer to the final submissions. It is on this point that the high court will rule, offering a lesson in procedure that goes beyond the simple case of a right of way.

The court's reasoning — broken down

The Cour de cassation, in its judgment of 7 January 2009, reminds us of a fundamental rule of the Code de procédure civile (French Code of Civil Procedure). It cites Article 455, paragraph 1, which states: 'The judgment must succinctly set out the respective claims of the parties and their arguments.' In other words, the judge must summarise what each party is asking for and why. This guarantees transparency and respect for the right to a fair trial.

In this case, the cour d'appel had ruled on the existence and width of the right of way. It confirmed that the servitude created in 1902 still existed and set its width at three metres. However, it did not succinctly set out the final claims of Mr Dupont and Mr Martin. Worse, it did not refer to (explicitly mention) the final submissions filed with their date, even though it could only rule on those. Indeed, in civil procedure, the judge can only rely on the final submissions, which reflect the parties' definitive position.

The Cour de cassation quashes (annuls) the cour d'appel's judgment due to this formal defect. It emphasises that this failure deprives the parties of the guarantee that their claims have been taken into account in their final version. Imagine: you file amended submissions to clarify your request, but the judge rules without mentioning them. How can you be sure they have read and understood them? This principle protects your right to be heard.

On the substance, the decision also addresses the question of the right of way. It reminds us that the extinction of a servitude is not automatic, even after division of the plots. The disappearance of the servitude benefiting a plot of land (fonds) may be established, but it does not automatically extend to the plots resulting from the division. In short, if your land is divided, the right of way may persist for each lot, unless the conditions have radically changed. This analysis is based on Articles 703 et seq. of the Code civil (French Civil Code), which govern servitudes.

What this means for you — in practice

This decision has immediate practical implications for different profiles. If you are a landlord (who rents out a property), for example of a house in Biscarrosse with shared access, you must ensure that the leases clearly mention the servitudes. In the event of a dispute with a neighbour, make sure your solicitor files up-to-date submissions and requires the judge to refer to them. undefined, I have come across cases where property owners have lost rights because their submissions were unclear or not referred to.

For a tenant, this decision reminds us of the importance of checking access to the property. If you rent a flat or a house with a right of way, and the neighbouring owner contests it, you could find yourself without access. Check the lease and any servitudes before signing. In case of a problem, require the landlord to take legal action with precise submissions.

If you are purchasing a property, this decision highlights the need for due diligence (thorough verification) before purchase. Have the servitudes examined by a notary or solicitor. A poorly defined right of way can lead to costly disputes. For example, in Parentis-en-Born, purchasing land without verifying access can lead to legal proceedings lasting several years, with legal fees potentially exceeding €5,000.

For co-owners, this decision also applies. Imagine a co-ownership with an access path subject to a servitude. If a co-owner contests its use, the procedure must follow the same rules: clear submissions and referred to by the judge. However, be aware: procedural deadlines can be long, often 1 to 2 years at first instance, and costs vary depending on complexity.

Four tips to avoid this type of dispute

• Check servitudes before any transaction: Whether you are buying, renting, or selling, consult a professional (notary, solicitor) to identify rights of way and other servitudes. In Biscarrosse, where plots are often large, this can avoid surprises.
• Document any agreement: If you establish a right of way with a neighbour, have it recorded in a notarial deed. A clear written document prevents future disputes.
• Monitor the procedure if you go to court: If you initiate legal action, work with a solicitor who files precise and up-to-date submissions. Require that they are referred to by the judge in the decision.
• Act quickly in case of conflict: Do not let a disagreement fester. Mediation or early legal action can resolve the problem before it becomes costly.

Further reading: related case law and developments

This decision is part of a consistent line of case law from the Cour de cassation. For example, in a judgment of 12 January 2005 (No. 03-10.947), the court had already reminded us of the judge's obligation to set out the parties' claims. It thus confirms a trend towards strengthening procedural guarantees for litigants.

What few people know is that this rule applies to all property disputes, not just rights of way. Whether it is a problem of party walls, construction, or a lease, the judge must respect this formality. For the future, this means that solicitors and parties must be even more vigilant about the quality of submissions filed. The courts, such as the one in Mont-de-Marsan, are increasingly strict on this point, quashing decisions for formal defects.

Frequently asked questions

Q: What is a right of way (servitude de passage)?
A: It is a right that allows an owner (dominant tenement) to use a neighbour's land (servient tenement) to access their property, often in cases of landlocked property.

Q: Why must the judge refer to the final submissions?
A: To guarantee that the decision is based on the parties' definitive position, avoiding errors or omissions.

Q: How long does a procedure for a servitude take?
A: On average, 1 to 3 years depending on the instances, with legal fees of €2,000 to €10,000.

Q: What should I do if my neighbour blocks my access?
A: Consult a solicitor quickly to initiate an action to have the servitude recognised or re-established.

Q: Does this decision apply to leases?
A: Yes, if a dispute over access involves a tenant, the procedure must follow the same rules.

Are you in a similar situation? An initial 30-minute consultation with Maître Zakine (€45) can save you months of procedure — and often much more. Book an appointment →