Right of Way Easement: When Dividing Land Changes Everything for Your Access Rights

Imagine you own a beautiful villa in Cagnes-sur-Mer, with access shared via a private path. You decide to divide your land to sell part and keep the other. But here's the issue: the new purchaser claims the right to use this same path, even though their plot is not even contiguous to yours. Who is right?

I encounter this situation regularly in my practice between Grasse and the coast. Owners often think that dividing land does not change existing rights. However, the legal reality is more subtle - and this lack of knowledge can be costly.

The Cour de cassation has just ruled on this question in a judgment of 12 September 2024. It recalls an essential distinction that every owner should know before subdividing their property. But what exactly does this change for your real estate projects?

The facts: a story as common as any

The story begins with several plots of land in a commune I could locate between Grasse and Cagnes-sur-Mer. Originally, a conventional right of way easement (an access right established by agreement between owners) had been created for the benefit of certain plots.

Over the years, the lands were divided, subdivided, resold. This is the normal game of the real estate market on the Côte d'Azur, where land pressure pushes to optimise every square metre. Mr and Mrs G thus acquired two plots resulting from these successive divisions.

The problem? These new plots were not contiguous (adjacent) to the servient tenement (the land that bears the easement). Yet, the owners believed they still benefited from the initial right of way. The neighbour, however, did not agree. How to react to this type of disagreement?

The dispute followed the classic path: first before the tribunal judiciaire, then on appeal. Each party defended their view of acquired rights. The owners of the new plots invoked Article 700 of the Civil Code, while the neighbour argued that the division had altered the initial situation. The Cour d'appel had ruled in favour of the latter, but the case went up to the Cour de cassation.

The court's reasoning — dissected

The judges of the Cour de cassation recalled a fundamental distinction. On one hand, Article 700, paragraph 1, of the Civil Code provides that in case of division of a tenement benefiting from a conventional right of way easement, this easement remains due for the benefit of all tenements resulting from the division. In other words, even if you divide your land, the initial right of way continues to apply to all new plots.

But be careful: this provision does not automatically create an easement between the tenements resulting from the division. In clear terms, if plot A benefited from a right of way over plot B, and you divide plot A into A1 and A2, these two new plots still benefit from the right over B. But this does not create a right of way between A1 and A2 themselves.

The Court clarifies a crucial point: the absence of contiguity of one of the tenements with the servient tenement does not matter. What few people know is that contiguity (being adjacent) is not a condition to benefit from a conventional easement. What counts is the common origin of the plots and the intention of the parties at the creation of the easement.

In this case, the Cour de cassation thus confirmed the solution of the Cour d'appel, but with important clarifications on the reasoning. It recalls that easements are real rights (which attach to the property itself, independently of its owner) that follow the land in all its mutations. But their exact extent always depends on the initial will of the parties and the characteristics of the property.

What this changes for you — concretely

If you own land in Grasse or its surroundings and are considering a division, this decision has direct implications. Take a concrete example: you have a 2,000 m² plot in Grasse with a right of way over the neighbouring land. You decide to divide it into two 1,000 m² lots to sell separately.

Before this decision, some might have thought that only the lot contiguous to the servient land kept the right of way. Now, it is clear: both lots benefit from the initial right. But beware: this does not mean that the two lots automatically have a right of way over each other. If one lot becomes landlocked (without access to the public road), you will need to negotiate a new easement.

For a purchaser, vigilance is essential. undefined, I have encountered cases where buyers discovered after acquisition that their access was not guaranteed as they thought. Always check the state of easements before signing a compromis de vente. A boundary survey (precise delimitation of lands) and an easement study cost between €1,500 and €3,000 on the Côte d'Azur, but can avoid disputes of several tens of thousands of euros.

For property developers, this decision offers legal certainty. When you divide land for a housing estate, you know that existing rights of way are transmitted to all lots. But this also requires reflection on the configuration of accesses. A poor subdivision can create unforeseen landlocked situations.

Tenants are indirectly concerned. If you rent a house whose access depends on an easement, ensure the landlord has properly verified the situation. A neighbourhood dispute over access can make the dwelling uncomfortable, even unlivable.

Four tips to avoid this type of dispute

• Have a complete easement report established before any land division. This includes active easements (which you benefit from) and passive ones (which you bear). Allow 2 to 3 weeks for this search.
• Consult a surveyor for the boundary survey as soon as you consider a division. The fees (€1,500 to €2,500 on average) are a much more profitable investment than a lawsuit.
• Anticipate the access of each future plot. If one risks being landlocked, plan now the creation of a conventional easement between the future lots.
• Have the deeds drafted by a specialised notary. A poorly drafted clause on easements can generate years of litigation. The additional cost of a good notary (about 1% of the sale price) is insurance.

Deep dive: related case law and developments

This decision fits into consistent case law. Already in 2015 (Cass. 3rd civ., 15 January 2015, no. 13-27.290), the Court had recalled that conventional easements follow the divided land. But the contribution of the 2024 judgment is to specify that the absence of contiguity is not an obstacle.

The trend of the courts is clear: they protect the security of real estate transactions by ensuring the stability of real rights. An easement created conventionally is considered an integral part of the property. It thus resists divisions, mutations, changes of owners.

What this means for the future? Owners can have confidence in the permanence of their access rights, even in case of division. But this security also imposes responsibility: think carefully before subdividing land, as the consequences are lasting. In the coming years, with the increasing urbanisation of the Grasse hinterland, these questions will only multiply.

In practice: what to do

If you are considering dividing land:
1. Consult a lawyer specialised in real estate law for a preliminary analysis (€45 for 30 minutes in my practice)
2. Order an easement report from the land registry service
3. Have a boundary survey done by a surveyor
4. Negotiate and draft any new easements before the division
5. Integrate all this information into the sale or division deed

If you are buying land resulting from a division:
1. Demand communication of the easement report
2. Personally verify the accesses
3. Have a professional verify that the rights are indeed transmissible
4. Do not hesitate to include a suspensive condition on the verification of easements

If you are already in a dispute:
1. Gather all documents (deeds, plans, correspondence)
2. Consult a lawyer quickly before any action
3. Prefer mediation if possible (less costly and faster)
4. Assess the real cost of the conflict (legal fees + loss of property value)

Do you find yourself 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 →