Right of Way: A Staircase of 99 Steps Is Not Sufficient — French Supreme Court 2016

Imagine: you have just bought a charming house in Capbreton, facing the ocean, but to access it you must climb a staircase of ninety-nine steps, so steep that the removal man refuses to carry your sofa up. Worse, no vehicle can approach: parking 500 metres away becomes your daily routine. Do you think you are entitled to a right of way across your neighbour's land to create a drivable road? This is exactly the question the French Supreme Court decided on 14 January 2016.

This decision, rendered under number 14-25.089, concerns any owner, tenant or real estate professional faced with an access problem. It recalls a simple but often misunderstood principle: a property intended for residential use (land with a house) is considered landlocked (without sufficient outlet) if vehicle access is impossible, even if pedestrian access exists. In short, a staircase, however solid, does not replace a road.

In this article, we will break down this case, understand what it changes concretely for you, and give you practical advice to avoid finding yourself in a similar situation. Whether you are an owner in Mont-de-Marsan or a buyer on the Landes coast, these rules concern you.

The facts: a story that happens every day

Mr and Mrs X are owners of a residential house in Capbreton, in the Landes region. Their land, set back from the public highway, is served by a staircase of ninety-nine steps, extremely steep. The couple explain that it is impossible for them to access their property by car: they have to carry everything on foot, from supplies to furniture. For them, this is a landlocked situation (a situation where a plot has no sufficient access to the public highway).

They therefore ask the court to recognise a right of way (the right to pass over the neighbour's land to access their house) on the basis of article 682 of the Civil Code, which provides that the owner of a landlocked property may require a right of way over neighbouring land. The neighbour, owner of the servient land (the one subject to the right of way), opposes this: according to him, the staircase constitutes a sufficient outlet, and there is no landlocking.

The Pau Court of Appeal, seized at first instance, ruled in favour of the neighbour. It held that the property was not landlocked, while noting that the staircase was steep and that approaching the house by vehicle was impossible. For the court, the fact of being able to access on foot sufficed. Mr and Mrs X appealed to the Supreme Court.

The French Supreme Court, in its judgment of 14 January 2016, quashed the decision of the Court of Appeal. It considered that the lower court judges had violated article 682 of the Civil Code. Indeed, for a property intended for residential use, normal use implies access by motor vehicle. A staircase of 99 steps, even if passable on foot, does not meet this requirement. The case was remanded to the Bordeaux Court of Appeal.

The reasoning of the court — broken down

Article 682 of the Civil Code provides: "The owner whose land is landlocked and who has no outlet onto the public highway, or only an insufficient outlet, either for the agricultural, industrial or commercial exploitation of his property, or for the carrying out of building or development operations, may demand a right of way over the land of his neighbours to ensure the complete servicing of his land, subject to paying compensation proportionate to the damage he may cause."

How far does the obligation to suffer a right of way extend? The Court of Appeal had considered that the staircase constituted a sufficient outlet, because it allowed pedestrian access. But the Supreme Court recalls that the assessment of landlocking must be made according to the destination of the land. A building plot or a residential house requires vehicular access for emergency vehicles (fire brigade, ambulance), removals, deliveries, or simply daily life (shopping, travel).

In this case, the Court of Appeal had itself noted that the staircase was "extremely steep" and that "approaching the house by vehicle was impossible". However, for the Supreme Court, these findings are contradictory to the conclusion of no landlocking. In other words, if vehicle access is impossible, the land is landlocked, regardless of the state of pedestrian access.

This decision is part of a consistent line of case law: since a 1999 judgment (Civ. 3e, 10 March 1999, no. 97-10.876), the Supreme Court has considered that vehicle access is part of the normal use of a dwelling. But here it goes further by specifying that even an existing staircase is not sufficient if its use is excessively difficult (99 steps, steep slope). Note however: the solution might have been different if the staircase had been wide, gently sloping and mechanised (e.g., a lift). But that was not the case.

What few people know is that the burden of proving landlocking lies with the claimant. undefined, I have come across cases where owners could not prove their access was insufficient, due to a lack of photos, bailiff's reports or witness statements. Here, Mr and Mrs X had well documented the situation, which allowed the Supreme Court to rule in their favour.

What this changes for you — concretely

For owners of individual houses: if you are in a similar situation (difficult pedestrian access, no possibility to park your car nearby), you can request a right of way over neighbouring land. But beware: this right is not automatic. You must demonstrate that the existing access is insufficient for the normal use of your house. A bailiff's report, photos, and possibly an expert report are essential.

For buyers: before buying a house, check the state of the access. In Mont-de-Marsan, for example, some properties set back are only accessible by a narrow path or a staircase. If access seems problematic, include a suspensive condition in the preliminary sale agreement (a clause that allows cancellation of the sale if the right of way is not obtained). Otherwise, you could end up with an unsellable house.

For neighbours (owners of the servient land): if an owner requests a right of way over your land, you can challenge the landlocking if the existing access is reasonable. But if the court recognises the landlocking, you must suffer the right of way, subject to compensation. This is freely fixed by the parties or, failing that, by the judge. It may amount to several thousand euros (e.g., €5,000 to €15,000 depending on the area and the inconvenience caused).

In practice, this decision reinforces the protection of owners of isolated houses. It also encourages notaries and estate agents to be more vigilant during transactions. If you are in this situation, you must act quickly: the action to recognise a legal right of way for landlocking is time-barred after 30 years from the landlocking, but the longer you wait, the more complicated the situation becomes (works, neighbour's constructions, etc.).

Four tips to avoid this type of dispute

• Before buying, have the access checked by a professional. Ask a surveyor or a notary to visit. If access is difficult, negotiate a price reduction or a suspensive clause linked to obtaining a right of way.
• If you are an owner, build a solid case. Take photos of the access from all angles, obtain a bailiff's report (cost about €150 to €300) and gather witness statements from neighbours or delivery drivers attesting to the difficulty of access.
• First propose an amicable solution. Before going to court, write to your neighbour to propose a right of way in exchange for compensation. A registered letter with acknowledgement of receipt can serve as proof of your good faith. Often, an amicable agreement costs less than a trial.
• Consult a lawyer specialised in property law. A lawyer will help you assess your chances, prepare your case and negotiate. In Mont-de-Marsan, several lawyers master these issues. A 30-minute consultation (€45 with Maître Zakine) can save you months of proceedings.

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

Further reading: related case law and developments

This decision is part of a line of judgments that interpret the notion of landlocking broadly for dwellings. For example, in a judgment of 10 March 1999 (no. 97-10.876), the Supreme Court had already held that vehicle access was necessary for a garage, even if the house was accessible on foot. More recently, a judgment of 20 September 2018 (no. 17-22.927) specified that landlocking could be constituted by mere difficulty of access, without requiring absolute impossibility.

On the other hand, for agricultural or industrial land, the case law is more nuanced: access by agricultural machinery or heavy goods vehicle is not always required, if pedestrian access allows minimal exploitation. The current trend is therefore towards increased protection of owners of residential houses, in line with the evolution of lifestyles (dependence on cars, need for deliveries, etc.).

For the future, one can expect courts to become increasingly demanding as to the quality of access, particularly in terms of safety (emergency vehicles) and accessibility for disabled persons. If you have a construction project, anticipate these constraints from the land purchase stage.

Checklist before acting

FAQ: Frequently asked questions on right of way for landlocking

Can I obtain a right of way if my access is simply narrow but drivable? No, landlocking presupposes a serious insufficiency. A narrow but drivable path does not justify a right of way, unless it is dangerous (e.g., width less than 2.50 m without possibility of passing).

What if my neighbour refuses to negotiate? You can take the matter to the judicial court. The procedure usually lasts 6 to 12 months. Budget €2,000 to €5,000 for lawyer's fees and expert costs. The compensation for the right of way, if granted, is at your expense.

Can I buy a house without drivable access hoping to obtain a right of way later? This is risky: if the neighbour objects and the judge considers pedestrian access sufficient, you will remain without a solution. Better to negotiate the right of way before the sale or abandon the purchase.

What are the time limits for action? The action to recognise a legal right of way for landlocking is imprescriptible (you can act at any time). However, the action for compensation is time-barred after 5 years from the day the right of way is established.

Can a tenant request a right of way? No, only the owner can act. But the tenant can report the problem to the owner, who must then take the necessary measures to guarantee peaceful enjoyment of the premises.

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 →