Right of way and landlocked land: the Court of Cassation rules in 1983

Imagine: you buy a house in Meylan, in the suburbs of Grenoble, with a nice garden. The only way to access your garage is to go through your neighbour's path. Everything is fine for years, until your neighbour decides to lock his gate. Can you still pass? Is your right of way permanent? These questions are asked by hundreds of owners every year. The Court of Cassation, in a ruling of 13 December 1983 (No. 82-15.224), gave a clear answer, which remains relevant today. Analysis.

The facts: a story like many that happen every day

In Brittany, a couple sells a plot of land which happens to be landlocked, that is, without direct access to the public highway. To enable the buyer to access it, the sale deed provides for a right of way (a right to pass) over the seller's land. The deed precisely fixes the location of the passage and its terms: width, times of use, etc. A few years later, the plot ceases to be landlocked: a new communal road is opened, or the buyer buys a strip of adjacent land. The seller then considers that the right of way should be extinguished, since the landlocked condition has disappeared. The buyer, on the other hand, argues that the right of way has become contractual by virtue of the sale deed, and must therefore continue even without the landlocked condition.

The dispute goes to court. At first instance (in the tribunal de grande instance), and then on appeal (before the Rennes Court of Appeal), the judges rule in favour of the seller: the right of way is extinguished because the landlocked condition has ceased. The buyer appeals to the Court of Cassation.

The reasoning of the court — explained

The Court of Cassation must decide a precise legal question: is a right of way created by a sale deed because of the landlocked state of the sold land a legal right of way (based on Article 682 of the Civil Code, which requires the owner of a landlocked plot to demand a passage) or a contractual right of way (freely agreed by contract)? If it is legal, it is extinguished when the landlocked condition disappears (Article 685-1 of the Civil Code). If it is contractual, it lasts as long as the contract is not revoked.

In its ruling of 13 December 1983, the Court of Cassation dismisses the buyer's appeal. It holds that 'the deed which fixed the route and the terms of exercise of the right of way does not have the effect of changing its legal basis and giving it a contractual character'. In other words, even if the sale deed precisely describes the passage (its route, width, etc.), the source of the right of way remains the landlocked condition. The right of way is legal, not contractual. Consequently, as soon as the landlocked condition ceases, the right of way is extinguished, in accordance with Article 685-1 of the Civil Code.

In short, putting the details of the passage in writing does not transform a legal right of way into a contractual one. What few people know is that this solution actually protects the owners of the servient tenement (those who suffer the passage): they are not bound indefinitely by a right that no longer has a reason to exist.

What this means for you — practically

For an owner in Grenoble or Meylan, this decision has immediate practical consequences. If you are the owner of a plot that benefits from a right of way because of a landlocked condition, and that landlocked condition disappears (for example, a new road is built, or you buy another plot to create a direct access), your right of way is automatically extinguished. You cannot require your neighbour to continue letting you pass, even if the sale deed provides for a passage 'in perpetuity'.

Conversely, if you are the owner of the servient tenement (the one who suffers the passage), you can ask for a declaration of extinction of the right of way as soon as the landlocked condition has disappeared. However, be careful: you will need to prove that the landlocked condition has ceased. For example, if a new communal road is opened, you will need to provide a cadastral plan or an administrative deed.

In my practice, I have come across cases where a buyer purchased a plot in 2010 with a right of way recorded in the deed, without knowing that it was based on a landlocked condition. In 2022, the municipality opened a new road; the neighbour then blocked the passage. The buyer found himself without access, because the right of way had been extinguished ten years earlier. He could have avoided this by checking the nature of the right of way before buying.

Four tips to avoid this type of dispute

• Check the nature of the right of way before buying. Ask your notary whether the right of way is legal (due to landlocked condition) or contractual. If it is legal, inquire about the risks of the landlocked condition disappearing in the medium term (road projects, etc.).
• Have the landlocked condition officially recorded by a bailiff or surveyor. If you benefit from a legal right of way, keep evidence that the landlocked condition still exists: photos, statements, plans. This will be useful if your neighbour contests your right.
• Negotiate a contractual right of way if possible. If you are selling a landlocked plot, you can grant a contractual right of way by a separate deed, which will not depend on the landlocked condition. This secures the buyer.
• If the landlocked condition disappears, have the extinction recorded. If you are the owner of the servient tenement, send a registered letter to your neighbour informing him that the right of way is extinguished, and have a bailiff's report drawn up if necessary.

Further reading: related case law and developments

This 1983 ruling is part of a consistent line of the Court of Cassation. As early as 1975, the Court had held that 'the legal right of way for a landlocked property cannot be transformed into a contractual right of way by the mere fact that the parties have determined its route and terms' (Civ. 3e, 18 February 1975). Since then, the solution is firmly established. In 2005, the Court clarified that the extinction of the legal right of way is automatic, without the need for a court decision (Civ. 3e, 9 November 2005, No. 04-16.154).

The trend of the courts is therefore clear: the legal right of way for a landlocked property remains precarious. It never becomes permanent, even if it is recorded in a notarised deed. For the future, owners must be vigilant: a legal right of way is not a right acquired in perpetuity.

What you absolutely must remember

FAQ:

1. Is a right of way recorded in my sale deed necessarily permanent? No. If it is based on a landlocked condition, it is extinguished as soon as the landlocked condition disappears, even if the deed does not say so.

2. Can I convert a legal right of way into a contractual one? Yes, by signing a separate notarised deed which clearly states that the right of way is granted gratuitously or for a consideration, independently of the landlocked condition.

3. What should I do if my neighbour blocks my access while I am still landlocked? You can apply to the interim relief judge to restore the passage. But you will have to prove the landlocked condition (lack of sufficient access to the public highway).

4. What are the time limits for taking action? The action to claim a legal right of way is subject to a 30-year limitation period. The action for a declaration of extinction is not subject to a specific time limit, but it is better to act quickly.

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