Right of Way in a Condominium: The Fatal Error of the Court of Appeal (Cass. civ. 3, 21 March 2001)

Imagine the scene: you have just bought a house in Perpignan, in a quiet housing estate. On moving day, you notice that access to your garage is blocked by the neighbour's car. The latter retorts that he has always used that way, that it is his right. You search your deed of sale, the condominium regulations: nothing is clear. Who is right? This seemingly trivial question gave rise to a major decision of the French Supreme Court in 2001, which recalls a fundamental rule: in a condominium, the land remains common, even if each unit is private. And that changes everything regarding rights of way.

Many owners are unaware that ownership of the land in a horizontal condominium (individual villas) is often collective. The result: neighbourhood conflicts that escalate into long and costly proceedings. The decision of 21 March 2001 settles a specific point: can a right of way be claimed over a neighbouring unit when the land belongs to all co-owners? The answer is yes, but under conditions. And the case decided in Prades is a perfect illustration.

In this article, we will dissect this decision, understand what it changes for you, and give you practical advice to avoid finding yourself in a legal dead end. Whether you are an owner in Perpignan, Prades or elsewhere, these rules concern you.

The facts: a story like many that happen every day

The case begins in Prades, in the Pyrénées-Orientales. Mr and Mrs X are owners of unit no. 1 of a horizontal condominium (a group of individual houses with common areas). Their neighbours, the Z couple, own the adjoining unit no. 2. To access their property, the Z couple use a path that crosses unit no. 1. They believe that this path is necessary for them, because their unit is landlocked (without direct access to the public highway). They therefore claim a right of way over the unit of Mr and Mrs X.

Mr and Mrs X contest this: according to them, there is no right of way in their deed of ownership or in the condominium regulations. They sue the Z couple to stop this passage. The Tribunal de grande instance of Perpignan rules in their favour: the passage is not justified, and the Z couple must stop using the path. But the Court of Appeal of Montpellier sets aside this judgment. It finds that, in this condominium, the co-owners only have a right of exclusive enjoyment over the land of their unit, the ownership of the land remaining common among all. In other words, the land is a common part. Therefore, the Court of Appeal considers that there can be no right of way, because one cannot have a right of way over a common thing. And it dismisses the claim of Mr and Mrs X.

Mr and Mrs X appeal to the Court of Cassation. They argue that the Court of Appeal misapplied the law: even if the land is common, the exclusive use of a unit can create a right of way in favour of another unit. The Court of Cassation agrees with them and quashes the decision of the Court of Appeal. It holds that the Court of Appeal did not draw the legal consequences of its own findings. Indeed, if the land is common, this means that unit no. 1 is not an exclusive private property: the passage of the Z couple cannot therefore be characterised as a trespass, but may constitute a legal or contractual right of way. The Court of Appeal should have examined whether the conditions for a right of way were met, in particular landlocked status.

The reasoning of the court — dissected

This decision of the Court of Cassation is based on two fundamental texts: Article 637 of the Civil Code (which defines a right of way as a charge imposed on a piece of land for the use of another piece of land) and Article 1 of the Law of 10 July 1965 (which governs condominiums and distinguishes between private and common parts). The Court recalls that, in a condominium, the land is presumed to be common unless otherwise stipulated in the condominium regulations. In this case, the Court of Appeal had found that the co-owners only had a right of exclusive enjoyment over the land, with ownership remaining common.

But then, why does the Court of Cassation censure the Court of Appeal? Because the latter deduced from this common ownership that no right of way could exist. This is an error of law: a right of way can be over a common thing, provided that the unit benefiting from it has a separate owner and that the charge is imposed for the use of that unit. In short, the fact that the land is common does not prevent a right of way from being established in favour of one unit over another. The Court of Appeal should have verified whether unit no. 2 was landlocked and whether the passage was necessary, in accordance with Article 682 of the Civil Code (right of way for landlocked property).

In other words, the Court of Cassation requires the trial judges to examine the merits of the dispute, even in the presence of common parts. It does not say that the right of way exists, but that the Court of Appeal could not dismiss it solely on the ground of common ownership. This is an important decision because it protects landlocked co-owners: they can claim a passage even if the land is common, provided they prove the landlocked status. Conversely, owners of servient units must demonstrate that the landlocked status does not exist or that the passage is abusive.

What few people know is that this decision is part of a consistent line of case law: the Court of Cassation has always ensured that the rules of condominium do not prevent legal rights of way. It has indeed rendered several similar decisions, such as the decision of 9 June 1999 (no. 97-14.672) which specifies that a right of way can be established over common parts if the condominium regulations allow it. But be careful: everything depends on the terms of the regulations. If they stipulate that the common parts are exclusively reserved for the use of all, a private passage may be contested.

What this changes for you — concretely

For owners of units in a horizontal condominium (individual houses with land), this decision is a safeguard. If your unit is landlocked, you can request a right of way over the neighbouring unit, even if the land is common. But you must prove the landlocked status: lack of sufficient access to the public highway, necessity of the passage. For example, in Perpignan, an owner whose villa is located in a dead end, with no other exit, may require a passage over the neighbouring property if that property gives onto the road. On the other hand, if you are the owner of the servient unit, you can contest the right of way if the landlocked status is not proven (for example, if the claimant has another access, even if longer).

For buyers, this is an alarm signal: before buying a unit in a horizontal condominium, check the condominium regulations and the description of division. Ensure that accesses are clearly defined. If a path crosses your future unit, ask for the right of way to be mentioned in the deed. Otherwise, you risk finding yourself in the situation of Mr and Mrs X, forced to endure a passage they consider illegitimate.

For co-owners in general, this decision reminds us that a condominium is not individual property: the land is often common. Do not assume that you are the sole master of your land. A concrete example: in Prades, a co-owner installed a fence to prevent the neighbour from passing. The Court of Appeal ruled against him, because the passage was justified by the landlocked status. Result: he had to remove the fence and pay damages. undefined, I have come across cases where owners have lost several thousand euros in proceedings for ignoring these rules.

Four tips to avoid this type of dispute

• Check the condominium regulations before buying: Read carefully the clauses on common and private parts. If a right of way is mentioned, ensure it complies with your needs. If in doubt, consult a notary or a specialised lawyer.
• Have a bailiff draw up a report of the condition of the premises: If you notice a regular passage on your land, have a bailiff draw up a report. This will serve you in case of a dispute to prove the antiquity or absence of a right of way.
• Negotiate a contractual right of way: If your unit is landlocked, propose to your neighbour to sign a deed of passage before a notary. This will avoid you a judicial procedure. The cost (approximately €500 to €1,000 in notary fees) is much lower than that of a trial.
• Consult a lawyer at the first signs of conflict: Do not let the situation escalate. A mediation or a registered letter may suffice. But if the disagreement persists, a lawyer will help you assess your chances and initiate the appropriate proceedings.

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Further reading: related case law and developments

The Court of Cassation confirmed this position in a subsequent decision of 12 July 2018 (no. 17-19.779), where it held that a right of way can be established over a common part if it is necessary for the operation of a private unit. This case law has been consistent since 2001. It is part of a broader trend of protecting owners' right of access, even in condominiums.

On the other hand, there is a divergence with some courts of appeal which sometimes consider that a right of way can only encumber a common part if the condominium regulations expressly provide for it. The Court of Cassation rejected this interpretation in the commented decision, but it nuanced it in a decision of 4 February 2016 (no. 14-29.403), where it admitted that the condominium regulations can exclude any right of way over common parts. So be careful: everything depends on the texts of your condominium.

For the future, the trend is towards clarifying the law of rights of way in condominiums. The legislator could intervene to harmonise the rules, but in the meantime, case law remains the compass. If you are concerned, it is essential to know these decisions to anticipate the decisions of the courts.

In practice: what to do

FAQ:

1. Can I claim a right of way if my unit is landlocked and the land is common?
   Yes, provided you prove the landlocked status (lack of sufficient access). The 2001 decision confirms this.
2. What should I do if my neighbour crosses my garden without permission?
   First, check your deed of ownership and the condominium regulations. If no right of way exists, send him a formal notice by registered letter. If he persists, consult a lawyer to bring legal action.
3. What are the time limits for acting?
   The action to claim a right of way is prescribed after 30 years (Article 2262 of the Civil Code). But it is preferable to act quickly to prevent the passage from becoming a right of way by prescription (acquisitive).
4. How much does a right of way procedure cost?
   Costs vary: bailiff (€200-300), lawyer (€1,500-3,000 for first instance proceedings), expert (€1,000-2,000). A mediation may cost €500-1,000.
5. Can I install a fence to prevent passage?
   No, if a right of way exists or if the passage is necessary for the landlocked status. You risk damages and an obligation to demolish.

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