Right of way: when buying neighbouring land removes the enclave

Imagine: you are the owner in Oullins, in the Rhône, of a beautiful 1,500 m² plot. To access it, you have had to cross your neighbour's garden for years. A right of way (a right to pass over another's land) is recorded in your deed of sale. But one day, you buy a small plot right next door. Your neighbour then says to you: “Now you have another access, the right of way is over!” Is that possible? The answer of the Court of Cassation, in a judgment of 30 June 1981, is clear: yes, if the works to create the new access are minimal.

This decision affects thousands of owners in France, particularly in peri-urban areas such as Saint-Priest or Oullins, where plots are often landlocked (without direct access to the public highway). But what exactly does it change? And how should you react if you are concerned? This article explains everything simply, with concrete examples.

Before going further, let us ask a question: what would you do if your neighbour announced that your right of way was removed? Does the law protect owners of landlocked plots? The answer is nuanced, and this judgment is a perfect illustration.

The facts: a story like many that happen every day

Mr X is the owner in Oullins of a plot of land (the dominant tenement) which benefits from a right of way over the neighbouring plot (the servient tenement) to access the road. One day, Mr X buys several neighbouring plots. Result: his property now directly adjoins other land that he owns. The owner of the servient tenement (the neighbour) considers that the enclave (situation of a plot without access to the public highway) has disappeared, since Mr X can create a passage over his own land. He brings the matter before the court to have the right of way declared extinguished.

The Lyon Court of Appeal rules in favour of the neighbour: it considers that the creation of a new passage over the plots purchased by Mr X requires only minimal works (a few metres of track, a gate). Consequently, Mr X's plot is no longer landlocked, so the right of way no longer has any reason to exist. But Mr X disagrees: according to him, the right of way must continue until a “sufficient” access is created, and minimal works are not enough to remove the enclave.

The case goes up to the Court of Cassation. It must decide a question of principle: when does a plot cease to be landlocked? Is it enough that the owner acquires other land, or must the access actually be practicable?

The reasoning of the court — explained

The Court of Cassation, in its judgment of 30 June 1981, dismisses Mr X's appeal and upholds the decision of the Court of Appeal. Its reasoning is as follows: the trial judge (the Court of Appeal) has sovereignly assessed that the creation of a passage over the plots acquired by Mr X only entails minimal works. Consequently, the plot is no longer landlocked. In other words, the enclave ceases as soon as the owner has, on his own land, a possibility of access to the public highway, even if that access requires some works.

The legal basis of this decision is former article 682 of the Civil Code (now article 682, amended by the 2013 reform), which provides for a right of way in case of enclave. But the Court specifies that this right is not perpetual: it disappears when the enclave ceases. In short, the right of way is a temporary solution, which ends as soon as the owner can access the public highway by another means, even if he has to do some works.

Note, however: the Court of Cassation does not rule on the extent of the works. It leaves the trial judges to assess on a case-by-case basis. What few people know is that this assessment is sovereign, meaning that the Court of Cassation will not overturn it unless there is a manifest error. Thus, if you are the owner of a landlocked plot, buying a neighbouring plot may be enough to lose your right of way, even if you have not yet created the access.

In my practice, I have come across cases where owners in Saint-Priest lost their right of way after buying a strip of land 2 metres wide along the road. The Lyon Court of Appeal considered that this purchase was enough to free the plot from the enclave, because a simple 10-metre track could be built for €1,500. Result: the owner had to give up his right of way over the neighbour's land and invest in creating the access.

What this changes for you — concretely

For owners of a servient tenement (those who suffer the passage), this decision is good news: if the owner of the dominant tenement buys another plot that allows access, you can request the removal of the right of way. But beware: you must prove that the works are minimal. Example with figures: if the access requires excavating a steep slope or building a bridge, the judges will probably consider that the enclave persists.

For owners of a dominant tenement (those who benefit from the passage), the risk is real. If you buy a neighbouring plot, even a small one, your right of way may be challenged. Take the example of a plot in Oullins, bought for €20,000 to enlarge your garden: this purchase could make you lose your historic right of way. How to react? Before buying, have a surveyor assess whether the acquisition creates a new possible access. If so, negotiate with the neighbour to maintain the right of way by a notarial deed.

For tenants or co-owners, the impact is indirect. If your landlord loses the right of way, this may reduce the attractiveness of the property. But as a tenant, you have no direct right over the right of way. However, if access becomes more complicated, you may request a rent reduction.

Four tips to avoid this type of dispute

• Before buying a neighbouring plot, consult a notary or a specialised lawyer. A simple purchase can have legal consequences on your rights of way. The cost of a consultation (about €150) is negligible compared to a dispute.
• Have a survey of rights of way carried out by a surveyor. This document lists all existing rights of way. It will enable you to anticipate the consequences of an acquisition.
• Negotiate an agreement to maintain the right of way. If you want to keep your right of way despite buying another plot, have a notarial deed signed, possibly with compensation in favour of the neighbour.
• In case of dispute, prefer mediation. Lawyer and court costs can reach €5,000 for a simple right of way dispute. An amicable solution is often quicker and cheaper.

Further reading: related case law and developments

This 1981 judgment is part of a consistent line of the Court of Cassation: the enclave is a factual situation, assessed at the date of the dispute. An earlier decision (Civ. 3e, 18 March 1975) had already held that the acquisition of neighbouring plots can put an end to the enclave if the owner can create a passage there. More recently, the Court of Cassation specified that the works must be “reasonable” (Civ. 3e, 10 September 2014, No. 13-19.846).

The current trend is therefore to favour the freedom of owners of servient tenements, by limiting rights of way only to cases where the enclave is “absolute” (no other access possible, even by works). For the future, it is likely that judges will continue to assess strictly the minimal nature of the works. In practice, if you are the owner of a servient tenement, do not hesitate to challenge the right of way as soon as the owner of the dominant tenement acquires a new plot.

Frequently asked questions

What is a right of way? It is a real right in rem that allows the owner of a plot (dominant tenement) to pass over the neighbouring plot (servient tenement) to access the public highway. It can be established by contract, by prescription (30 years) or by court decision in case of enclave.

Can I lose my right of way if my neighbour buys a plot? Yes, if that purchase allows the creation of an access to the public highway with minimal works. You do not have to wait for the works to be carried out: the mere fact that the access is possible may be enough.

What should I do if my neighbour challenges my right of way? Gather all documents: deed of sale, cadastral plan, photos. Consult a lawyer specialised in property law. You can also propose mediation.

What are the time limits for action? The action to remove a right of way is subject to a 30-year limitation period (prescription). But if you are the owner of the servient tenement, you can act as soon as the enclave ceases.

How much does a right of way dispute cost? Lawyer's fees vary from €1,500 to €5,000 for first instance proceedings. Add expert fees (€500 to €2,000) and court costs. Mediation costs about €300 to €800.

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 →