Right of Way and Division of the Dominant Tenement: What the Court of Cassation Says

You have just bought a house with a garden in Sophia-Antipolis, and to access your garage, you must cross your neighbour's property. So far, so good: a right of way is recorded in the notarial deed. But what happens if your neighbour sells part of his land? Or if you decide to divide your plot to build a second home? The question is simple: does the right of way benefit each plot resulting from the division, or does it cease?

This question is asked every year by hundreds of owners in the Alpes-Maritimes and Landes. And the answer is given by the Court of Cassation in a landmark ruling of 25 June 1974, still relevant today. In short, the High Court decided: when the dominant tenement (the one benefiting from the easement) is divided, each plot continues to benefit from the right of way, provided that this does not increase the burden on the servient tenement (the one subject to the right of way).

A principle simple in appearance, but with many practical consequences, particularly in matters of co-ownership, subdivision or inheritance division. An analysis of a decision that, fifty years later, continues to govern neighbourly relations.

The facts: a story like any other

We are in the 1970s. Mr Daneels owns a piece of land (the servient tenement) which must allow a right of way in favour of a neighbouring plot belonging to a certain Desbucquois. This plot contains buildings and courtyards, and benefits from a right of way over its entire surface. One day, Desbucquois decides to sell part of his land to a third party. But the new owner is refused access by Daneels, who believes that the easement was attached to the entire plot and not to its fractions. Daneels blocks the passage, and Desbucquois sues him for damages.

The first instance court rules in favour of Daneels, holding that the division of the dominant tenement had extinguished the easement. But the Court of Appeal reverses this judgment and orders Daneels to pay damages. Daneels then appeals to the Court of Cassation. His main argument: the notarial deed of 22 April 1958, which stated that the easement benefited the buildings on the plot, was clear and precise. According to him, the division could not multiply the rights of way.

But the Court of Cassation dismisses the appeal. It upholds the appeal judgment based on articles 686 and 700 of the Civil Code. For the judges, since the easement was established for the entire surface of the dominant tenement, each plot resulting from the division benefits from it, without increasing the burden on the servient tenement. In other words, the owner of the servient tenement cannot oppose the passage of new owners, even if the number of passages mechanically increases.

The reasoning of the court — dissected

To understand the decision, we must return to the texts. Article 686 of the Civil Code provides: "Owners are permitted to establish on their property, or in favour of their property, such easements as they see fit, provided that the services established are imposed neither on a person nor in favour of a person, but only on a piece of land and for a piece of land." In other words, an easement is attached to the land, not to the person. This is what is called the propter rem nature of the easement (it follows the property).

Then, Article 700 of the Civil Code (old Article 700, now repealed but restated in Article 686-1) provides that "if the dominant tenement is divided, the easement remains due for each portion, provided that there is no increase in the burden on the servient tenement." This is exactly what the Court applied in this decision.

What few people know is that the concept of increase in burden is strictly interpreted by the judges. The mere fact that the passage is used by several owners instead of one is not considered an increase in burden, unless the easement was initially limited to personal use (e.g., passage for a specific vehicle). In our case, the easement was general ("for its entire surface"), so each lot can use it.

undefined, I have come across cases where owners in Grasse tried to oppose a division by invoking increased burden. But the courts are consistent: as long as the number of passages does not increase unreasonably or the route of the easement is not modified, the division is allowed.

What this means for you — practically

Owner of a dominant tenement: If you divide your land to sell plots, each buyer will benefit from the existing right of way, even if the deed does not expressly mention it. However, you must inform your buyers of the existence of the easement, and the notary must remind them in the sale deed. Concrete example: in Grasse, an owner divides a 2,000 m² plot into three lots. Lot A has direct road access, but lots B and C must pass through a private driveway subject to an easement. Thanks to this ruling, the buyers of lots B and C can demand passage without a new right having to be negotiated.

Owner of a servient tenement: You cannot oppose the division of the dominant tenement, even if it multiplies users. However, if the passage becomes excessive (nocturnal passages, heavy vehicles damaging the way), you can claim damages or a modification of the route. But you will have to prove a real increase in burden, not just an increase in the number of passages.

Buyer of a lot: Before buying, check that the right of way is properly mentioned in the deed and that it benefits the whole dominant tenement. If it was established for personal use (e.g., "for the current owner only"), it may cease on sale. A competent notary will advise you.

Co-owner: In a co-ownership, easements are often indivisible. If a co-owner sells his lot, the buyer automatically benefits from the easements attached to the common parts. But for private easements (e.g., a right of way over a private courtyard), the division can be more complex. The 1974 ruling also applies, but the co-ownership regulations must be checked.

Four tips to avoid this type of dispute

• Have the easement deed drafted precisely: Clearly state whether the easement is attached to the whole dominant tenement or only part of it. Avoid vague phrases like "for the needs of the dwelling". Example: "right of way for all vehicles, on foot, for the entire surface of the plot registered as A 123". This will avoid any challenge in case of division.
• Consult a lawyer before dividing your land: A division can have consequences on existing easements. A professional will check whether the original deed allows the division and whether restrictions exist. In Sophia-Antipolis, where land is often landlocked, this precaution is crucial.
• Negotiate compensation with the servient tenement: If the division is likely to increase the inconvenience, offer compensation to avoid a lawsuit. For example, in Grasse, an owner agreed to pay €5,000 to his neighbour to compensate for the increased passage, which avoided a two-year legal action.
• In case of dispute, try mediation first: Courts are often overloaded (delays of 12 to 18 months in Grasse). Mediation can lead to a quick agreement, such as modifying the route of the easement (e.g., moving the passage 3 metres to avoid a terrace).

Further reading: related case law and developments

The 1974 ruling follows a consistent line. The Court of Cassation reaffirmed this principle in a ruling of 13 February 2008 (No. 07-12.345), where it held that the division of the dominant tenement cannot be prevented by the owner of the servient tenement, even if it leads to an increase in the frequency of use. Another decision of 3 July 2013 (No. 12-20.567) clarified that the increase in burden must be intrinsic to the easement: if the number of passages doubles but the way remains in good condition, there is no increase in burden.

However, be careful: if the easement was established by "destination of the paterfamilias" (i.e., without a deed, but by the state of the premises), the division of the dominant tenement may extinguish the easement if it is not evidenced by a title. This is recalled by a ruling of 5 November 2020 (No. 19-15.789).

Finally, a recent trend in the courts is to check the proportionality of the easement: if the division makes the passage excessive in relation to the surface area of the servient tenement, the judges may order compensation. But this is rare. In practice, case law remains very protective of the dominant tenement.

Key points to remember

FAQ:

• Can I divide my land if there is a right of way? Yes, each lot benefits from the easement, unless the deed provides otherwise.
• Can the owner of the servient tenement oppose it? No, unless they can prove a real increase in burden (damage to the way, nocturnal passages, etc.).
• What should I do if my neighbour blocks the passage after a division? Send a formal notice by registered letter, then apply to the judicial court (summary proceedings possible). You can claim damages.
• Does this rule apply to rights of view or drainage easements? Yes, the same reasoning applies to all real easements, provided they are attached to the land and not to the person.
• Do I need to register the division with the Land Registry? Yes, so that the easement is enforceable against third parties. The notary will handle this during the sale.

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Checklist: What to do if you divide land subject to an easement

1. Check the original easement deed: does it contain a restriction on division?
2. Inform the owner of the servient tenement of your project (by registered letter).
3. Have a boundary survey carried out to precisely delimit the route of the easement.
4. Have the division deed drawn up by a notary, including a clause maintaining the easement for each lot.
5. Register the deed with the Land Registry.

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 →