Right of Way for Landlocked Plot: the Seller Cannot Waive It for You

Imagine the scene: you have just bought a nice piece of land in Mimizan, the pines, the smell of the forest, a peaceful place. Except that to access it, you have to cross your neighbour's property, who inherited part of the same housing estate. The previous owner had, however, signed a document saying that this right of way was no longer authorised. But you, as the new owner, are you bound by this waiver? The question that any owner of a landlocked plot (without access to the public highway) asks is simple: can I pass, even if my seller said no?

This decision of the French Supreme Court of 21 June 1983 (No. 82-12.891) answers clearly: yes. The right of way provided for by Article 684 of the Civil Code is a matter of public policy. It applies even if the common grantor (the person who divided the land) has waived this right. In other words, the seller's waiver cannot deprive the buyer of his right to pass over the plots resulting from the division.

In short, if you buy a plot which becomes landlocked as a result of the division, you automatically benefit from a legal easement of way over the other plots resulting from the same division. And no one, not even your seller, can waive it on your behalf. A valuable legal safeguard, but which raises questions: how does this apply in practice? What are the pitfalls to avoid?

The facts: a story like many that happen every day

The case begins with an owner, whom we shall call Mrs X, who owns a large piece of land in Mimizan (in the Landes region). She decides to divide it into several plots for sale. She reserves certain plots for herself, but these reserved plots become landlocked: they no longer have direct access to the public highway after the division. However, the law is clear: according to Article 684 of the Civil Code, where the division of a piece of land (a plot) results in a plot being landlocked, the owner of that plot is entitled to a right of way over the other plots resulting from the division.

But Mrs X, after selling the other plots, signs a deed by which she waives the benefit of this easement of way for her reserved plots. Then she sells these reserved plots to a certain Mr B. The latter, upon becoming owner, finds himself without access: the right of way to which he would be entitled is refused by the owners of the other plots, who rely on Mrs X's waiver.

Mr B. then sues the owners of the neighbouring plots before the Tribunal de Grande Instance of Mont-de-Marsan. He asks for his right of way to be recognised. The court, then the Court of Appeal of Pau, ruled in his favour. But the neighbours appealed to the Supreme Court. They argued that the waiver by the common grantor (Mrs X) was valid and that Mr B., her buyer, could not have more rights than she did.

The French Supreme Court, in its decision of 21 June 1983, rejected their argument. It quashed the appeal decision, but on another ground: the Court of Appeal had incorrectly applied Article 684. In reality, the Supreme Court confirmed the principle: the easement established by Article 684, first paragraph, of the Civil Code has a legal basis. The buyer of the plot which has become landlocked as a result of the division of the land cannot be refused a right of way over the land resulting from the division on the ground that the common grantor has waived the benefit of this easement. The waiver is not enforceable against the buyer.

The reasoning of the court — dissected

The crux of the reasoning is in one sentence: the easement of way provided for in Article 684 of the Civil Code (which imposes a right of way over plots resulting from a division to relieve a landlocked plot) is a matter of public policy. This means that it exists automatically, by law, as soon as the conditions are met (division resulting in landlocking). It cannot be waived in advance, especially when that waiver is made by the grantor of the division.

Why? Because the law protects the buyer of the landlocked plot. The idea is to prevent an owner from, by dividing his land, creating landlocked plots and then depriving buyers of any access. It is a rule of fairness and economic public policy. The Supreme Court states it clearly: "The easement established by Article 684, first paragraph, of the Civil Code having a legal basis, the buyer of the plot which has become landlocked as a result of the division of the land cannot be refused a right of way over the land resulting from the division on the ground that the common grantor has waived the benefit of this easement."

Note, however: the Supreme Court quashed the appeal decision on the basis of Article 684, but for a procedural issue. In reality, the Court of Appeal had granted a right of way over a plot that was not part of the original division. The Supreme Court therefore referred the case back for the right of way to be determined correctly. But the principle remains: the common grantor's waiver does not prevail against the buyer.

What few people know is that this solution applies even if the buyer was aware of the landlocking at the time of purchase. The easement is legal, it applies to everyone. In my practice, I have come across cases where a seller had promised not to claim a right of way, but the buyer was able to override this thanks to this article.

What this means for you — in practice

For owners: if you buy a landlocked plot resulting from a division, you are entitled to a right of way over the other plots, even if the seller has waived this right. In practice, you must apply to the Tribunal Judiciaire of Mont-de-Marsan or of the place where the property is located to have your right recognised. The procedural costs (lawyer, expert) can amount to €3,000-5,000, but the outcome is favourable if the conditions are met.

For sellers: you cannot deprive a future buyer of his right of way by waiving the easement yourself. If you want to avoid a conflict, it is better not to divide your land in a way that creates a landlocked plot, or to provide for a right of way from the outset.

For buyers: before buying, check whether the land is landlocked. If so, ensure that the seller has not waived the easement (even if such a waiver is not enforceable against you, it may lead to litigation). In Mimizan, for example, land without access can lose 30 to 50% of its value. With this right of way, you can demand access and restore normal value.

For notaries: upon a division, you must inform the parties of the existence of Article 684 and of the impossibility of validly waiving the easement to the detriment of future buyers.

Four tips to avoid this type of dispute

• Check access before buying: Before signing a preliminary sale agreement, ask the seller to prove that the land has direct access to the public highway (via a cadastral extract, an easement deed). If the land is landlocked, require the seller to regularise a right of way before the sale.
• Have a contractual easement drafted: If you divide your land, provide in the division deed for an easement of way in favour of the landlocked plot. This will avoid any subsequent dispute and secure the resale.
• Keep all division deeds: If you are the buyer, carefully keep the division deed and plans. They will serve to prove the origin of the landlocking and the right to the legal easement.
• Consult a lawyer before any waiver: If you are a seller and you waive an easement, be aware that this waiver will not bind your buyers. It is better not to waive, or to do so with guarantees.

Further reading: related case law and developments

This decision is part of a consistent line of the French Supreme Court. Already, in a decision of 19 March 1975 (No. 73-13.762), the Court had held that the easement under Article 684 is a matter of public policy and applies even if the landlocking results from a voluntary division. More recently, the Court confirmed this solution in a decision of 2 October 2013 (No. 12-24.998), specifying that the right of way must be taken over the plots resulting from the division, in the shortest and least damaging manner.

The trend of the courts is therefore very protective of the buyer of the landlocked plot. It can be expected that this case law will continue, as it meets a requirement of fairness: preventing the division of land from creating inaccessible "gaps".

However, this protection has its limits. If the landlocking predates the division (for example, the land was already landlocked before), it is Article 682 that applies, with different conditions. Article 684 only concerns landlocking created by the division itself.

In practice: what to do

FAQ: frequently asked questions

• Q: Can I pass over the neighbour's land if my land is landlocked? A: Yes, if the landlocking results from the division of the land (Article 684). Otherwise, Article 682 applies, but the principle is the same: you are entitled to a right of way.
• Q: What if the seller has waived the easement? A: This waiver is not enforceable against you. You can apply to the court to have your right of way recognised. Consult a lawyer.
• Q: What are the time limits for taking action? A: The limitation period is 30 years for an action to assert a legal easement. But it is advisable to act quickly to avoid an aggravation of the landlocking.
• Q: Does the right of way have to be paid for? A: No, the legal easement is free of charge. However, if you use the right of way for building or for commercial purposes, compensation may be due for abnormal neighbourhood disturbance.
• Q: Can I refuse the right of way to my neighbour if my land results from the same division? A: No, you must let him pass. But you can ask that the right of way be located in the least damaging place for you.

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 →