Right of Way and Landlocked Property: Legal Status Confers Possessory Action

Imagine: you have just bought a lovely house in Gien, in the Loiret. The notary assured you everything was in order. But one morning, your neighbour, Mr Dupont, installs a fence across the path you have been using for years to access your garage. He claims that this passage is merely a tolerance on his part and that he can remove it whenever he wants. What should you do?

I see this situation almost every week in my practice. The question is always the same: do I have a right of way or am I at the mercy of my neighbour? The answer lies in one word: landlocked. And this is precisely what the Court of Cassation reminded us in a judgment of 15 May 1974 (No. 73-10.633), which remains an absolute reference.

In short, if your property is landlocked (i.e., without sufficient access to the public highway), you have a legal right of way, even without a notarial deed. The judgment states: 'in matters of landlocked property, the very fact of being landlocked constitutes the title which allows the possessory action to be exercised.' In other words, the state of fact suffices to create a right. But caution: the landlocked state must be genuine and not a mere convenience.

The facts: a story like many others

Mr X is the owner in Gien of an agricultural plot. To access it, he has always used a path crossing the property of Mr and Mrs Y. One day, Mr and Mrs Y close this path. Mr X sues them in court to be maintained in his possession of the passage. He invokes the landlocked state of his plot.

Mr and Mrs Y reply that the passage was never more than a tolerance, and that Mr X does not provide any written title. The court of first instance rules in favour of Mr X, but the Orléans Court of Appeal reverses this judgment: it considers that Mr X does not prove that the passage was based on a right, rather than a mere tolerance. It therefore dismisses his claim.

Mr X appeals to the Court of Cassation. He argues that his property is landlocked and that the mere fact of being landlocked constitutes a title. The Court of Cassation rules in his favour: it quashes the appellate decision on the ground that the judges should have investigated whether the claimed right of way was based on the legal title of being landlocked. The case is remitted to another Court of Appeal.

The reasoning of the court — dissected

To understand this judgment, two key concepts must be distinguished: discontinuous easement and possessory action. A discontinuous easement (such as a right of way) is exercised only by repeated human acts, unlike a continuous easement (such as a view) which is exercised without human intervention. However, to bring legal proceedings to be maintained in possession (possessory action), one must prove a title for discontinuous easements. But the Court of Cassation clarifies that the state of being landlocked is an exception: it itself constitutes the legal title.

The legal basis is former Article 682 of the Civil Code (now Article 682) which provides that the owner whose land is landlocked may claim a right of way over neighbouring land to ensure access. The Court reminds that this text creates an automatic right, without the need for a notarial deed. Thus, when a landlocked owner uses a passage for more than a year and a day, he can take legal action to be maintained in that possession, even if the neighbour claims it was a tolerance.

What few people know is that this solution protects the landlocked owner against abuse by the neighbour. Without it, it would be enough for the neighbour to close a passage after years of tolerance to plunge the other into a legal dead end. The Court of Cassation therefore intended to provide an effective tool for the landlocked owner.

What this means for you — concretely

If you own a landlocked property, this decision is a safety net. You do not need a written deed to assert your right of way. You only need to prove that your property is landlocked (e.g., no direct access to the road) and that you have been using the passage peacefully and continuously for more than a year. Concrete example: in Olivet, an owner of a house without direct street access uses a path across the neighbour's land for 10 years. The neighbour changes his mind and wants to block it. The owner can apply to the urgent applications judge to be maintained in his passage, without having to produce a deed of easement.

However, caution: if you are the neighbour suffering the passage, you can contest the state of being landlocked. For example, if the allegedly landlocked property has another access, even if difficult, the landlocked state does not exist. In that case, the passage is only a tolerance and you can remove it. But it is up to you to prove that the landlocked state does not exist.

For a buyer, always check before purchasing whether the property is landlocked. If the passage is not mentioned in the deed, but the seller uses it, the 1974 judgment protects you. But it is better to secure the situation by a conventional easement.

Four tips to avoid this type of dispute

• Check access before buying: during your visit, ensure the property has direct access to the public highway. If not, ask the seller to provide evidence of an easement deed or a statement of use.
• Have the landlocked state recorded by a bailiff: if you use a passage without a deed, a bailiff's report (approx. €150 to €200) can serve as proof in the event of a dispute. The bailiff describes the state of the premises and your use of them.
• Use the passage regularly and peacefully: the possessory action requires continuous and unequivocal possession for at least one year. Pass regularly, without violence or secrecy.
• Negotiate an amicable easement: if your neighbour agrees, have a deed of easement drafted by a notary. This avoids any future dispute and secures your property for resale. The cost is generally between €500 and €1,000 depending on complexity.

Further reading: related case law and developments

The 1974 judgment is part of a consistent line of the Court of Cassation. Already, a judgment of 8 March 1972 (No. 70-13.627) had held that the possessory action is available to the landlocked owner without a written deed. More recently, the Court confirmed this solution in a judgment of 13 January 2016 (No. 14-28.490): being landlocked constitutes a title within the meaning of Article 682 of the Civil Code, even for the possessory action.

The trend is therefore clear: judges protect the landlocked owner. But caution, this protection is not absolute. If the passage used does not correspond to the shortest and least damaging route for the servient tenement, the neighbour can request a modification. Moreover, the possessory action only allows being maintained in possession, not obtaining damages. For that, a substantive action is required.

Frequently asked questions

Can I take action if I have only been using the passage for less than a year? No, the possessory action requires possession of at least one year. Below that, you cannot apply for an urgent possessory order. You must wait or bring a substantive action.

What should I do if my neighbour blocks the passage with a fence? Apply to the urgent applications judge without delay. You can request the removal of the fence under penalty payment. Attach photos, a bailiff's report and any document proving prior use.

Is the possessory action free? No, you have to factor in lawyer's fees (€1,500 to €3,000 depending on complexity) and court costs (€225 stamp duty for a substantive claim, but urgent applications are less expensive).

Can I obtain damages if the neighbour blocks my access? Yes, if you suffer loss (e.g., inability to rent the property, loss of harvest). You must then bring a substantive action, separate from the possessory action.

Is being landlocked the only way to obtain a right of way without a deed? Yes, apart from being landlocked, a right of way can only be acquired by deed or by thirty-year prescription (use for 30 years). The possessory action then only serves to protect an already existing possession.

Are you in a similar situation? An initial 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →