Right of Way and Landlocked Property: When Access is a Right, not a Permission

Imagine the scene: you have just bought a house in Montreuil, at the end of a cul-de-sac. To access your garage, you must cross the neighbour's courtyard, as the previous owner had done for years. One day, without warning, your neighbour erects a gate and refuses you passage. What can you do? Does the law protect you? This is precisely the question the Court of Cassation decided in 1971, in a judgment that remains an absolute reference for all owners and tenants facing a right of way problem.

But what is a right of way? It is a real property right (a right attached to the land, not to the person) that allows the owner of a 'landlocked' plot – i.e., without direct access to the public highway – to pass over the neighbouring land to exit. However, this right is not automatic. You must prove that you exercise it under a title (a notarial deed, a judgment, etc.) or, failing that, that the land is landlocked. And this is where this 1971 decision changes everything.

In short, the Court of Cassation held that the state of landlocking itself constitutes the legal title for a right of way. In other words, if your land is genuinely landlocked (no access to the public highway), you do not need a written document to claim passage: the landlocking suffices. But beware, this protection is granted only if you demonstrate that you exercised the passage as a right, and not by mere permission of the neighbour. That is the subtlety of this judgment.

The Facts: A Story That Happens Every Day

The case began in Évry, in the Essonne department. The Pozzi couple owned a plot of land that, to access the road, had to cross the neighbouring property of Mr and Mrs X. For years, they used this path without difficulty. But a dispute arose, and the neighbour decided to block the passage. The Pozzi couple then brought legal proceedings, a 'complaint' (the name for a possessory action, i.e., an action to protect their possession of a right) to be maintained in their use of the passage.

The problem was that the Pozzi couple had no notarial deed, no written title granting them this right of way. They merely invoked the state of landlocking of their land: without this passage, their plot was completely isolated from the public highway. The neighbour, for his part, argued that the passage was merely a permission (a factual authorisation, revocable at any time) and not an established right. He invoked the rule that a discontinuous easement (like passage, which is not exercised continuously) cannot be protected by a possessory action without a title.

The court of first instance ruled in favour of the Pozzi couple, but the Paris Court of Appeal reversed this judgment. The Pozzi couple appealed to the Court of Cassation. The Court of Cassation had to decide: can the state of landlocking be considered a sufficient title to found a possessory action in matters of discontinuous easement?

The Reasoning of the Court — Analysed

The Court of Cassation, in its judgment of 23 June 1971, began by recalling the principle: a discontinuous easement, such as a right of way, can only be the subject of a possessory action (an action aimed at protecting possession of a right) if the claimant proves a title establishing that he intended to exercise a right, and not merely to use a permission. So far, nothing new.

But the Court added a fundamental exception: 'The very fact of the landlocking of a plot constitutes the title.' In other words, if the land is landlocked, i.e., without any access to the public highway, the state of landlocking amounts to a legal title. The trial judges (those who decide the facts) can therefore verify whether the land is genuinely landlocked, without violating the rule that prohibits combining the petitory action (action on the right itself) with the possessory action (action on possession). In short, even though one cannot, in principle, discuss the right of ownership in a possessory action, one can examine the landlocking because it is a legal fact that creates the right.

What few people know is that this decision is a confirmation of earlier case law, but it clarifies the conditions of proof. It does not create a new right, but it facilitates the protection of landlocked owners. Magistrates thus have a tool to verify the reality of the landlocking without encroaching on the merits of the right.

undefined, I have come across cases where owners in Grasse or Nice were denied access to their land on the pretext that the passage was only a permission. Thanks to this judgment, we were able to demonstrate that the landlocking constituted the title and obtain the restoration of the passage.

What This Changes for You — Practically

For owners: If you own a landlocked plot, you can take legal action to have your right of way recognised, even without a written title. But be careful, you must prove that the landlocking is genuine (no direct access to the public highway) and that you exercised the passage as a right (not mere permission). For example, if you have been using it for 10 years without the neighbour objecting, that is an indication of possession of a right.

For tenants: You are not the owner of the land, but you can benefit from the right of way if the owner has constituted it. In case of dispute, it is the owner who must act. But you can inform him of the judgment so that he can assert his rights.

For buyers: Before buying a plot that appears landlocked, always check the existence of a right of way. Ask to see the title deed. If nothing is written, the state of landlocking can protect you, but it is better to have it verified by a surveyor and, if possible, obtain a written acknowledgment from the neighbour.

Concrete example: In Évry, an owner bought a plot without direct access. The seller had used a path on the neighbour's land for 20 years. The new buyer continued, but the neighbour blocked the passage. Thanks to this judgment, the court recognised the landlocking and ordered the restoration of the passage, without a written title. The cost of the proceedings? About 2,000 to 3,000 € in lawyer's fees and costs, but the stakes were much higher (land value: 150,000 €).

Four Tips to Avoid This Type of Dispute

• Have the state of landlocking confirmed by a chartered surveyor: Before any purchase or in case of doubt, a surveyor's report (cost: 500 to 1,500 €) will officially establish the lack of access. This document can serve as evidence in court.
• Obtain a written title: Ideally, have a passage agreement (private deed or notarial act) signed with the neighbour. Even if landlocking is a legal title, a written document avoids disputes. Possibly provide for compensation.
• Do not allow a permission to become established: If you use a passage on a neighbour's land without a written right, ask him for a written acknowledgment. Otherwise, after 30 years, you could acquire the easement by prescription, but that is long and risky.
• Keep evidence of peaceful use: Photos, witness statements, invoices for maintenance work on the path… Anything showing that you passed as of right (and not by permission) strengthens your case.

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Further Reading: Related Case Law and Developments

This 1971 judgment is part of a consistent line: the Court of Cassation has always considered that landlocking constitutes a legal title for an easement. One can cite a judgment of 8 July 2009 (no. 08-17.765) which recalls that the easement due to landlocking is a matter of public policy (cannot be derogated from by agreement) and that the state of landlocking is assessed at the date of the claim. Another decision of 13 January 2016 (no. 14-28.484) specifies that the owner of the landlocked plot must bear the costs of developing the passage.

Trend: Courts are increasingly strict on proof of landlocking. It is not enough to say that access is difficult: you must demonstrate that it is non-existent or insufficient for the normal use of the plot. If access exists but is impassable (e.g., a non-driveable path), landlocking may be found.

For the future, the question of compensation for the owner of the servient tenement (the one who suffers the passage) remains debated. The law provides for compensation, but its amount is often a source of dispute.

In Practice: What to Do

FAQ:

Can I block a passage I have tolerated for years? Yes, if the passage is merely a permission (without title and without landlocking). But if the plot is landlocked, you cannot block it: the owner has a legal right.

What if my neighbour blocks access to my landlocked plot? Apply to the judicial court in interim proceedings (urgent) or on the merits. You can ask for the restoration of the passage under a penalty payment (fine per day of delay).

What are the time limits for acting? The possessory action must be brought within one year of the disturbance (Art. 1266 of the Code of Civil Procedure). After this period, you lose the possessory protection, but you can still act on the merits.

How much does a procedure cost? Count 2,000 to 5,000 € in lawyer's fees, plus surveyor's costs (500-1,500 €) and court costs. But it is worth it if the land value is high.

Can I pass over another's land without right? No, that is a trespass. Even if you are landlocked, you must first obtain judicial recognition or an agreement.

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 →