Right of Way Servitude: When Your Sold Land Remains Accessible to the Neighbour

Imagine yourself in Grasse, in that beautiful property you have just bought after months of searching. You dream of landscaping your garden, installing a swimming pool, enjoying your space in complete tranquillity. But then one morning, your neighbour knocks on your door: "Good morning, I'm passing through your property as usual to access my land." You look at them, incredulous. No one mentioned this to you during the purchase! How is this possible?

This situation, more common than one might think in our region where land is often landlocked (without direct access to the public highway), raises a crucial question: what happens when a servitude (a right of use established over a property for the benefit of another property) exists on your property, but you were not fully informed about it during the purchase? Must it still be respected?

The Cour de cassation answered this question clearly in a 2011 decision that is now a reference. This analysis explains, in simple terms, what this means concretely for you, whether you are an owner, tenant, or real estate professional in the jurisdiction of Grasse.

The Facts: A Story as Common as Any

The story begins in 1993, well before our case. At that time, Mr. and Mrs. Z., owners of a plot of land in Vallauris, obtained from their neighbour, Mr. A., the right to pass over his plot to access the road. They signed a private deed (a document written and signed by the parties, without the involvement of a notary) establishing this right of way servitude. Life went on, and the neighbours used this passage regularly.

Years later, in 2006, Mr. A. decided to sell his land. The purchaser, Mrs. X., signed the deed of sale at the notary's office. This document contained a particular mention: the vendor declared that he had not created nor allowed any servitude to be acquired over the property... except the one constituted in favour of Mr. and Mrs. Z. The private deed from 1993 was even annexed to the deed of sale. Furthermore, a letter from a lawyer, Me A., confirmed the intention of Mr. and Mrs. Z. to regularise this servitude.

But here is the problem: this servitude was never published at the land registry office (the service responsible for the publicity of real rights over immovable property). Mrs. X., once the owner, contested the existence of this servitude. She sued Mr. and Mrs. Z., considering that she could not be bound to respect a right that had not been officially published. The case went up to the Cour de cassation after being heard by the court of appeal.

undefined in Grasse, I have encountered several similar cases where purchasers discovered, sometimes years after the purchase, servitudes that were not published but very real. The surprise is often great, and the financial consequences can be heavy.

The Court's Reasoning — Analysed

The Cour de cassation confirmed the decision of the court of appeal: the servitude created in 1993 is perfectly enforceable against Mrs. X., the purchaser, even in the absence of publication at the land registry office. But how did the magistrates arrive at this conclusion?

The reasoning rests on several key elements. First, the servitude had been created before the sale, in 1993. It therefore already existed when Mrs. X. bought the land. Secondly, and this is crucial, the private deed establishing this servitude was annexed to the deed of sale. Mrs. X. could therefore not be unaware of its existence.

But what exactly does this change? Publication at the land registry office is normally necessary to make a servitude enforceable against third parties (persons not party to the deed). However, the court considered that in this specific case, the purchaser was not an ignorant third party: she had been informed of the existence of the servitude by several means.

Article 691 of the Civil Code (which defines servitudes) and Article 2148 (relating to land publicity) were interpreted pragmatically. The court estimated that when the purchaser has knowledge of a servitude, notably because it is mentioned in the deed of sale and the documents concerning it are annexed, this knowledge equates to sufficient publicity. In other words, one cannot claim to be unaware of what one has seen and signed.

Mrs. X.'s arguments relied on the absence of formal publication. She considered that without this formality, the servitude could not be enforced against her. But the judges considered that the direct information she had received made this publication less necessary in her case. This is not a reversal of case law, but rather a flexible application of existing principles to a concrete situation.

Be careful, however: this decision does not mean that all unpublished servitudes are automatically enforceable. It specifies the conditions under which the purchaser's knowledge can compensate for the absence of formal publication.

What This Changes for You — Concretely

If you are a purchaser of an immovable property, this decision concerns you directly. From now on, you must be particularly vigilant when reading the deed of sale. A simple mention of a servitude, even if it is not officially published, can bind you. In the jurisdiction of Grasse, where landlocked plots are frequent, this vigilance is even more important.

Let's take a concrete example in Vallauris: you buy a 500 m² plot for €300,000. The deed mentions that a neighbour has a right of way over a 2-metre width. Even if this servitude is not published, you will have to respect it. This can affect the value of your property by 10 to 20%, i.e., €30,000 to €60,000 in our example. How to react? Before signing, have all annexed documents checked by a professional.

If you are a vendor, this decision protects you to a certain extent. If you have correctly informed the purchaser of an existing servitude, even if unpublished, you limit the risks of subsequent recourse. But be careful: this information must be clear, precise, and ideally documented.

For landlord owners, the situation is different. As a tenant, you are generally not directly concerned by servitudes, unless they affect your enjoyment of the property. But if you are a landlord, you must inform your tenant of any servitude that may affect their use of the dwelling.

Real estate professionals (agents, notaries) see their responsibility reinforced. They must ensure that all servitudes, even unpublished ones, are correctly brought to the attention of the parties. An omission could engage their professional liability.

Four Tips to Avoid This Type of Dispute

• Always request a statement of servitudes: before any purchase, demand from the vendor or notary the complete list of all servitudes affecting the property, whether published or not. In the jurisdiction of Grasse, pay particular attention to rights of way, very frequent in older residential areas.
• Check all documents annexed to the deed: take the time to read and understand each document attached to the deed of sale. If a private deed is annexed, have it explained by a professional. What few people know is that these annexes form an integral part of the contract.
• Have a joint inspection of the land carried out: before the definitive signature, visit the property with the vendor and explicitly discuss accesses, passages, neighbours' rights. Note in writing everything mentioned during this visit.
• Consult a specialised lawyer before signing: a preventive consultation costing a few hundred euros can save you costly disputes of several thousand euros. undefined, I have seen too many cases where a simple prior check would have changed everything.

In-Depth Analysis: Related Case Law and Developments

This 2011 decision is part of a broader jurisprudential trend. Already in 2006, the Cour de cassation had rendered a judgment (No. 05-10.902) that went in the same direction, considering that a servitude could be enforceable even without publication when the purchaser had knowledge of it. The 2011 decision confirms and clarifies this orientation.

In short, the courts tend to favour the reality of situations and the good faith of the parties rather than excessive formalism. When a purchaser has been correctly informed of a servitude, the judges consider that they must assume the consequences, even if the publication formalities have not been respected.

This evolution is important for the future. It means that a simple check at the land registry office is no longer sufficient. Purchasers must now conduct more thorough investigations, and vendors must be particularly transparent about the history of their property.

In the jurisdiction of Grasse, this trend is particularly relevant given the significant number of old properties and servitudes often established informally between neighbours, sometimes for several generations.

Key Points to Remember

FAQ — Your Questions, Our Answers:

1. Can an unpublished servitude be enforced against me if I buy a property?
Yes, if you had knowledge of it during the purchase, notably through mention in the deed of sale or annexed documents.

2. How can I know if a servitude exists on a property I want to buy?
Request a complete statement of servitudes from the vendor, check at the land registry office, and examine attentively all documents annexed to the deed of sale.

3. I am a vendor: must I publish all servitudes before the sale?
Ideally, yes. But failing that, you must absolutely mention them clearly in the deed of sale and annex all documents concerning them.

4. What should I do if I discover a servitude after the purchase?
Quickly consult a specialised lawyer. Depending on the case, you might have recourse against the vendor or the notary, but the time limits are short (generally 5 years from discovery).

5. Can a servitude affect the value of my property?
Yes, significantly. A right of way servitude can reduce the value by 10 to 30% depending on its location and impact on the use of the property.

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 →