Right of Way: What to Do When Your Neighbour Blocks Your Access?

Imagine: you are a property owner in Valognes, in the Manche department. To access your land, you have always used a path that crosses your neighbour's property. One day, without notice, they install a barrier and forbid you to pass. Your access is cut off. What to do? The temptation is great to go to court to have the situation restored. But you must prove your right. This question, commonplace in daily life, was decided by the Court of Cassation in a judgment of 11 May 1976 (No. 74-14.746), which clearly distinguishes a conventional easement from one arising from landlocking.

In law, passage over another's land is a so-called "discontinuous" easement (it is exercised only at intervals, each time you pass). However, possessory actions (such as the complaint, which allows you to be maintained in possession) are normally not available for discontinuous easements, unless the possessor can prove a title. But the law provides a major exception: landlocking. Being landlocked means that your property has no access to a public road, or only an insufficient one. In that case, the very fact of landlocking constitutes a legal title, which allows you to act quickly in court without having to produce a notarial deed.

What exactly does the 1976 judgment say? It quashes a court of appeal decision that had merely found that the claimant had possessed the passage for more than one year (annual possession), without checking whether that possession was based on the state of landlocking or on mere tolerance. In short, the lower courts must examine whether the land is truly landlocked, and not merely whether the neighbour has allowed passage for a year. This nuance is crucial for all owners and tenants facing a neighbour dispute. Let us discover together the lessons of this decision and how to apply them concretely, whether you are in Saint-Lô or elsewhere.

The Facts: A Story Like Many Others

Mr and Mrs X own a plot in Valognes. To access their land, they have for several years used a path crossing the property of the Y family. A dispute arises: the Y family decide to close the passage, arguing that they never granted a right of way, and that the tolerance enjoyed by the X couple can cease at any time. The X couple, considering their land landlocked (no other access possible), sue the Y family to be maintained in their possession of the passage.

The first instance court rules in favour of the X couple: it finds that their plot is indeed landlocked and orders the restoration of the passage. But the Y family appeal. The court of appeal, without ruling on the issue of landlocking, holds that the X couple possessed the passage for more than one year in a peaceful, public, and unequivocal manner (annual possession). It therefore decides to maintain them in possession, without investigating whether that possession was based on a real right or on mere tolerance.

The Y family appeal to the Court of Cassation. The Court of Cassation rules in their favour: it censures the appeal judgment for not having verified whether the land was landlocked. The high court recalls that, for a discontinuous easement such as a right of way, a possessory action is only admissible if the claimant proves a title. In matters of landlocking, the legal title is the state of landlocking itself. But that state must still be established. In this case, the court of appeal evaded this question, even though the Y family contested the landlocking. The case was therefore referred to another court of appeal to examine whether the X couple's plot was indeed landlocked.

The Reasoning of the Court — Explained

The Court of Cassation relies on a fundamental principle of easement law: discontinuous easements (such as passage, drawing water, grazing) cannot be acquired by possession. Indeed, Article 688 of the Civil Code defines them as those requiring the actual act of man to be exercised. However, the possessory action (the complaint) allows the protection of possession, but it is only available for continuous and apparent easements (such as a view, a water pipe). For discontinuous easements, the possessor must prove a written title (notarial deed, judgment). This is where landlocking provides an exception: Article 682 of the Civil Code grants a right of way to the landlocked owner, and this right exists independently of any written title. Case law considers that the state of landlocking constitutes the "legal title" that allows the possessory action to be exercised.

But beware: this legal title is not automatic. It must be demonstrated. The Court of Cassation insists: the judge must verify whether the land is truly landlocked, i.e., that it has no access to a public road, or an insufficient access for the normal use of the property. If the passage was used by mere tolerance of the neighbour (out of courtesy, without opposition), then there is no acquired right, and the neighbour can withdraw it at any time. In the case decided, the court of appeal made the mistake of being satisfied with annual possession, without questioning the basis of that possession. In other words, it confused possession and right.

This reasoning is consistent with established case law. The 1976 decision is neither a reversal nor an innovation: it recalls a classic rule. But it is particularly useful because it requires judges to concretely examine the state of landlocking, which prevents owners from being maintained in possession of a passage they never had the right to use. In practice, this means that if you have used a path for years, but your neighbour forbids it, you cannot bring a complaint if you are not landlocked. You would then have to prove the existence of an easement by title or by thirty-year prescription (which is longer and more complex).

What This Changes for You — Concretely

If you are the owner of a landlocked plot, this decision is good news: you can act quickly by way of a complaint, without having to produce a notarial deed. Concretely, if your neighbour blocks your access, you can apply to the interim relief judge (emergency procedure) to obtain the restoration of the passage. You will have to prove that your land is landlocked: for example, by producing a cadastral plan, photos, or a bailiff's report. The judge will then order reinstatement under a penalty. However, be careful: if your neighbour contests the landlocking, the judge will have to decide. If you are not landlocked, you risk losing and having to pay damages.

For a tenant, the situation is different. The tenant does not have standing to bring a complaint, as they are not the owner. They must inform their landlord, who alone can bring the action. However, the tenant can ask the interim relief judge for a protective measure, such as provisional reinstatement, if they show a legitimate interest (for example, if the blockage prevents them from accessing their home).

If you are a buyer of a property, be vigilant: before purchasing, check that access is guaranteed by a title (easement mentioned in the deed) or that the land is not landlocked. In Saint-Lô, I encountered a case where a buyer purchased a house without checking access: the only path was an easement by tolerance, and the neighbour blocked it six months after the sale. The buyer had to bring a substantive action (thirty-year prescription) that lasted three years. To avoid this, have a boundary survey carried out and ask for a notarial certificate on the existence of a right of way.

Finally, if you are the owner of the servient tenement (the one bearing the burden of the passage), this decision protects you: you cannot be forced to let someone pass who has no right, unless their land is landlocked. But if you tolerate a passage for years, you risk creating an easement by prescription (30 years). It is therefore better to formalise the situation by a deed or, if you want to limit the passage, to have it recorded in writing that it is a mere revocable tolerance.

Four Tips to Avoid This Type of Dispute

• Check access before buying: when acquiring a property, ask the notary to verify whether a right of way is recorded in the deed. If the property is landlocked, include a clause requiring the seller to obtain a conventional easement before the sale.
• Formalise tolerances in writing: if you allow a neighbour to pass over your land, write a simple letter stating that it is a temporary and revocable permission. This will prevent them from claiming possession that could prescribe.
• In case of conflict, act quickly: if your passage is blocked, do not delay in consulting a solicitor. The possessory action must be brought within one year of the disturbance (limitation period). After this period, you will have to bring a substantive action, which is longer and more costly.
• Have the landlocking recorded: if you think your land is landlocked, have a bailiff's report drawn up describing the lack of access. This document is solid evidence for the judge.
• Do not resort to self-help: do not destroy your neighbour's barrier, even if you think you are right. This could expose you to criminal proceedings. Always prefer the judicial route.

Further Reading: Related Case Law and Developments

The 1976 decision is part of a consistent line of authority. One can cite a judgment of the Court of Cassation of 8 July 1964 (No. 62-13.244) which had already held that landlocking constitutes a legal title to exercise the possessory action. More recently, a judgment of 12 September 2019 (No. 18-19.173) recalled that a landlocked owner can bring a complaint even if the passage has been used for less than one year, provided that the landlocking is established.

The trend of the courts is therefore favourable to landlocked owners, but with a requirement of proof. Judges are increasingly strict on the characterisation of landlocking: it must be shown that the land has absolutely no access, or that the existing access is insufficient for the normal needs of the use. For example, a simple dead end is not enough if another path exists, even if difficult to access. In my practice, I have encountered cases where owners in Valognes lost their action because they could access their land from another side, even in poor condition.

For the future, we can expect case law to maintain this line, but perhaps with an opening towards taking into account changes in lifestyle (notably access for emergency vehicles). In any event, if you are landlocked, you have a powerful legal weapon, but it must be used wisely.

Checklist Before Taking Action

• 1. Check if you are landlocked: does your land have direct access to a public road? If yes, even narrow, you are not landlocked. If not, gather evidence (photos, plans, bailiff's report).
• 2. Identify the basis of your passage: is it an easement recorded in the deed? A tolerance? Long-standing possession? If you have no written title, landlocking is your only chance for a quick action.
• 3. Act within one year: the possessory action (complaint) must be brought within one year of the disturbance (Art. 1264 of the Code of Civil Procedure). After this period, you will have to bring a petitory action (to have your right recognised), which is longer and more costly.
• 4. Consult a solicitor: a specialist in property law can assess your chances and draft the summons. Maître Zakine, a solicitor in Cherbourg, practises in the entire jurisdiction of the Caen Court of Appeal, including Valognes and Saint-Lô.
• 5. Consider mediation: before going to court, try to reach an amicable agreement. Mediation can avoid costs and preserve neighbourly relations. But if the other party refuses, do not hesitate to act.

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 →