Right of Way by Destination of the Head of the Family: When Access to Your Property Is at Stake

Imagine the scene: you have just bought a charming house in Anglet, with a garden that opens onto a dead end. To access your garage, you must cross a triangular strip of land of 94 square metres that belongs to your neighbour. Until now, everyone passed through without a problem. But one day, your new neighbour decides to put up a fence. You find yourself blocked, with no way out. What to do? This situation is experienced by hundreds of owners every year, particularly within the jurisdiction of the Pau Court of Appeal, where land boundaries are sometimes poorly defined and easements are ancient.

The question you ask yourself is simple: do I have a legally protected right of way, even if no notarial deed mentions it? The answer lies in a legal concept: the right of way by destination of the head of the family. But beware, the courts are demanding on evidence.

A decision of the Court of Cassation of 25 January 1965 (No. 63-11.023) clarifies the conditions. The judges validated the reasoning of a Court of Appeal that had awarded higher damages than at first instance, without having to specify the nature of the damage or the causal link, provided the damage had worsened. More importantly, the decision recalls that for a right of way by destination of the head of the family to be recognised, an apparent and unambiguous state is required. In other words, mere tolerance or long-standing use is not enough: there must be installations that leave no doubt as to the intention of the original owner.

The Facts: A Story That Happens Every Day

In this case, it all starts with a plot of land in Bayonne. An officer, owner of a plot, had arranged the premises so as to create a triangular strip of land of 94 square metres beyond the old fence. This arrangement was, according to him, intended to avoid creating a right of way in favour of the neighbouring land. But his actions contradicted his intentions: earlier correspondence showed that he himself had mentioned the existence of a passage. Later, the land was divided and sold to two different owners. One of them, the owner of the dominant tenement (the one benefiting from the passage), sued his neighbour to have his right of way recognised and to obtain damages for the disturbance of enjoyment suffered.

The court of first instance recognised the existence of a right of way by destination of the head of the family and awarded damages. But the neighbour, dissatisfied, appealed. The Court of Appeal confirmed the right of way, but increased the amount of damages, considering that the damage had worsened since the first instance judgment. The neighbour then appealed to the Court of Cassation, arguing that the Court of Appeal had not specified the nature of the damage nor established the causal link between the disturbance and the damage. The Court of Cassation dismissed the appeal, ruling that the first judges had correctly assessed the damage at the time they ruled, and that the Court of Appeal, noting the worsening, had sovereignly assessed the new amount.

The Reasoning of the Court — Explained

The heart of the dispute concerns Article 692 of the Civil Code (which governs easements by destination of the head of the family) and Article 1240 (formerly 1382) which requires compensation for damage caused by one's fault. The easement by destination of the head of the family is an easement that arises from the arrangement of the premises by a single owner, before the division of the land. For example, if an owner creates a path to go from one part of his land to another, then sells the two plots to different people, the path becomes an easement in favour of the tenement that needs it.

In this decision, the Court of Cassation recalls a fundamental principle: the easement by destination of the head of the family requires an apparent and unambiguous state. This means that the installations must be visible (a door, a paved path, a pipe) and not open to confusion. In this case, the Court of Appeal had found that the arrangement of the premises (the triangular strip of land) had given rise to the easement. The original owner might claim that he had acted to avoid the easement, but his actions (the correspondence) showed the opposite. The lower courts therefore sovereignly assessed the facts.

As for damages, the Court confirms that the Court of Appeal did not have to detail the nature of the damage or the causal link, since the court of first instance had already done so. The appeal judges simply updated the amount based on the worsening of the disturbance. This is a classic application of the devolutive effect of appeal (Article 561 of the Code of Civil Procedure): the case is re-heard in its entirety, and the court can reassess the damages.

What This Changes for You — Concretely

For an owner in Bayonne or Anglet, this decision is a double-edged sword. On one hand, it confirms that you can obtain damages if your right of way is violated, and that these damages can be increased if the disturbance persists. On the other hand, it requires you to prove that the easement is apparent and unambiguous. No question of invoking mere tolerated use: there must be material traces (a door, a path, a visible installation).

Let's take a concrete example: you own a house in Anglet, and your neighbour has blocked access to your garage for 6 months. The loss of enjoyment can be assessed at €200 per month, i.e. €1,200 for 6 months. If the conflict lasts a year, you can request an update of the damages. This decision allows you to obtain €2,400 instead of €1,200, without having to redo the entire trial on the principle.

For a purchaser, be vigilant: before buying, check whether the property benefits from a right of way. If it is not mentioned in the notarial deed, but you see a path, question the seller. Better a recognition of easement by notarial deed than a legal battle. If you are a tenant, you can also act: the disturbance of enjoyment allows you to ask for a rent reduction or damages, but it is up to the owner to defend the right of way.

Four Tips to Avoid This Type of Dispute

• Have the condition of the premises recorded by a bailiff: as soon as you buy, have a report drawn up of the visible installations (doors, paths, pipes). This will constitute solid proof in case of dispute.
• Require a notarised easement: if the property depends on a passage, ask the seller to have an easement established by notarial deed with the notary. This will save you having to prove its existence before the courts.
• Keep all correspondence: email exchanges, letters, photos. As in the Bayonne case, a simple letter can contradict the statements of the original owner and tip the scales.
• Do not wait to act: if your neighbour blocks the passage, take the case to the judicial court within 5 years from the first disturbance. After this time, you risk the limitation period (Article 2224 of the Civil Code). An interim injunction can quickly obtain a provisional measure.

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Further Reading: Related Case Law and Developments

An earlier decision, the famous "right of way of the Court of Cassation of 12 February 1964", had already laid down the principle of apparent state. In that case, an unpaved path but regularly used was recognised as an easement. The difference? There was a door and visible rock fill. The 1965 decision confirms and clarifies that the intention of the original owner is decisive, but it can be inferred from the installations.

More recently, the Court of Cassation recalled in 2018 (No. 16-28.342) that the easement by destination of the head of the family cannot result from mere factual use, even prolonged. There must be an intentional act of the owner. This trend is constant: judges require tangible evidence. For the future, if you are the owner of a landlocked tenement, know that the judicial route is long (1 to 3 years on average), but damages can be substantial if the disturbance is established.

In Practice: What to Do

FAQ:

1. Can I pass through my neighbour's land without a title? No, unless you prove the existence of an easement by destination of the head of the family or by prescription of thirty years (continuous use for 30 years).
2. What to do if my neighbour puts up a fence? Take the case to the judicial court for an interim injunction to obtain demolition under penalty. You can also claim damages.
3. What is the time limit to act? 5 years from the disturbance (personal action) or 30 years if you invoke an easement by prescription (real action).
4. How much does a trial cost? Expect €2,000 to €5,000 in lawyer and expert fees, but you can claim legal costs (Article 700) if you win.
5. Can I obtain compensation for the disturbance? Yes, if you prove harm (impossibility of access, loss of enjoyment, etc.). The amount varies according to duration and severity.

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 →