Right of Way: When Buying a Plot Does Not End the Landlocked State

Imagine: you own a beautiful plot in Montdidier, but to access it you must cross your neighbour's land. One day, you learn that a neighbouring strip of land is for sale, and it benefits from a right of way. You buy it, thinking the landlocking is over. But is it that simple? The Court of Cassation answered no, in a decision of 4 January 1991, which continues to set precedent. Let's find out why.

The facts: a story that happens every day

Mr X, a landowner in Montdidier, owned a landlocked plot (no direct access to the public highway). He benefited from a right of way over his neighbour Mr Y's plot. One day, Mr X acquired a new plot, adjoining his property, which itself had a right of way over a neighbouring strip of land. But note: this strip of land was used for a gas installation (an underground pipeline). Mr X considered that, thanks to this acquisition, the landlocked state had ended: he could now access his plot via the new acquisition and its right of way. Mr Y disagreed and took the matter to court. The first instance court ruled in favour of Mr Y, and the Bordeaux Court of Appeal confirmed on 29 September 1988. Mr X then appealed to the Court of Cassation.

The court's reasoning — explained

The question before the Court of Cassation was: does the acquisition of a plot adjoining the landlocked property and benefiting from a right of way over a strip of land subject to a special purpose (here, a gas pipeline) end the landlocked state? For the judges, the answer is no. Their reasoning: the right of way benefiting the new plot was limited by the special purpose of the strip of land. In short, the right of way was not free and permanent; it was subject to the use of the pipeline. However, for a property to cease being landlocked, it must have sufficient and permanent access to the public highway. Here, the access was precarious because it depended on the gas installation. The Court of Cassation therefore dismissed the appeal. In doing so, it reaffirmed a fundamental principle: the landlocked state is assessed on a case-by-case basis, that is, according to the actual characteristics of the land and the rights attached to it.

What this means for you — practically

This decision has important practical implications. For a landlord: if your tenant complains about difficult access, do not think that a simple purchase of a neighbouring plot will solve the problem. You must verify that the acquired right of way is free from any encumbrance. For a buyer: before purchasing a plot to relieve your property from landlocking, have the existing easements analysed. An example in Péronne: a client bought a plot with a right of way over a country lane, but the lane was reserved for agricultural machinery. Result: the landlocking persisted. For a landlocked owner: if you are considering an acquisition, ensure that the passage is permanent and not subject to a special purpose. Otherwise, you risk wasting time and money. In my practice, I have encountered cases where owners bought plots without checking these points and had to engage in lengthy and costly proceedings.

Four tips to avoid this type of dispute

• Check existing easements: before any acquisition, consult the cadastre and the local urban plan (PLU) to identify rights of way and any restrictions.
• Carry out a joint inspection: with your neighbour, note the condition of the path and any special purposes (pipeline, power line, etc.). A bailiff's report may be useful.
• Require a warranty against eviction in the sale deed: the seller must guarantee that the right of way is free from any hidden encumbrances. If problems arise, you can pursue the seller.
• Consult a specialist solicitor before any transaction: a professional can analyse the risks and advise you on the best strategy (negotiation, boundary action, etc.).

Further reading: related case law and developments

This decision is part of a consistent line: the Court of Cassation requires sufficient and permanent access. One can cite a decision of 2 July 1986 (No. 85-10.123) which held that the landlocked state does not end if the owner acquires a plot with precarious access (e.g., seasonal right of way). Since 1991, the trend has been towards strictness: courts examine the reality of access on a case-by-case basis. For the future, it is likely that judges will continue to protect owners of servient tenements against attempts at artificial relief from landlocking. This means that if you are the owner of a servient tenement, you can oppose a non-genuine release from landlocking.

Key points to remember

• The acquisition of a plot with a right of way does not end the landlocking if the right of way is subject to a special purpose.
• Precarious or limited access is not enough: it must be free and permanent.
• Before buying, check the easements and get professional assistance.
• If you are the owner of the servient tenement, you can challenge an artificial release from landlocking.
• This case law is consistent: courts are strict about the reality of access.

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