Right of Way for Landlocked Property: When an Overly Narrow Access Justifies a Right of Way

Imagine: you live in Caen, rue de la Délivrande, and your only access to the public highway is a passage 80 cm wide that opens… onto a wall. No door, no exit. You own your house, but to get in you have to go through your neighbour's property. Absurd? Yet this is the daily reality for many owners whose land is landlocked (without sufficient access to the public highway).

The question every owner in this situation asks is: do I have the right to demand a passage over my neighbour's land? And if so, under what conditions? The decision of the Court of Cassation of 11 February 1975 (No. 73-13.974) provides a clear answer: yes, as soon as the existing access is unusable due to its narrowness or blocked opening.

But beware, this decision is not the end of the story. It lays the foundations, but practical implementation can be fraught with pitfalls. In this article, I analyse this landmark case and give you the keys to understanding your rights and taking action.

The facts: a story that happens every day

Mr Laguarrigue owns a piece of land in Caen, in the Folie-Couvrechef district. His land is surrounded by neighbouring properties, with no direct access to the public highway. He does have an exit, but it is particularly narrow — less than one metre — and, above all, it opens onto a wall. In other words, to get out of his property, he has to climb the wall or take an impassable path. Not exactly 'sufficient' access for normal use of his property.

Mr Laguarrigue then sues his neighbours, the X consortium, to obtain a right of way over their land to reach the street. The neighbours refuse: according to them, Mr Laguarrigue already has an exit, even if it is narrow. They invoke the principle that a state of landlocking (a situation where land has no sufficient access) cannot be recognised if an exit exists, even if imperfect.

The first instance court rules in favour of the neighbours. But Mr Laguarrigue appeals. The Caen Court of Appeal, in a judgment of 27 June 1973, reverses the decision: it considers that the existing exit is 'unusable' due to its narrowness and its opening onto a wall. It therefore grants a right of way over the land of the X consortium. The latter appeal to the Court of Cassation.

The Court of Cassation, in its judgment of 11 February 1975, dismisses the appeal. It validates the reasoning of the Court of Appeal: the trial judges have conclusively found that the exit was unusable, which is sufficient to establish a state of landlocking. The right of way is therefore justified.

The reasoning of the court — analysed

The dispute concerns Article 682 of the Civil Code (which provides that the owner of a landlocked property may demand a right of way over neighbouring land to ensure access). But it is necessary to define what a 'landlocked property' is. The law does not specify this; it is case law that has set the criteria.

In this case, the neighbours argued that a state of landlocking cannot be recognised if the land has an exit, even an imperfect one. They cited the maxim 'landlocking is not extinguished by non-use', but applied it in reverse: according to them, the existence of an exit prevents the land from being classified as landlocked.

The Court of Cassation does not follow this logic. It recalls that landlocking is a question of fact, assessed conclusively by the trial judges. If the existing exit is 'unusable', then the land is landlocked, regardless of whether that exit was used in the past. In other words, the existence of a passage is not enough: it must also be passable and open onto the public highway.

What few people know is that, by this judgment, the Court of Cassation confirmed a trend already underway: the case-by-case assessment of the concept of landlocking. It rejects any automaticity. Thus, an exit 80 cm wide may be considered insufficient if it does not allow the passage of a vehicle or even a pedestrian with a pram. In short, the judges look at the normal use of the land: is it building land? a dwelling? agricultural land?

In my practice, I have come across cases where owners put up with a narrow exit for years, until a move or building work made that exit impracticable. The 1975 case law is then of great help to them.

What this means for you — in practice

This decision has important practical implications, whether you are an owner, tenant or property professional.

For the owner of a landlocked property: you can demand a right of way if your current access is too narrow or opens onto an obstacle (wall, embankment, etc.). However, beware: the passage must be as short and as little damaging as possible for the servient tenement (the one that suffers the passage). You will generally have to compensate your neighbour. For example, in Hérouville-Saint-Clair, an owner of a 500 m² plot with no direct access obtained a 3-metre-wide passage over the neighbouring land, in return for compensation of €5,000 (i.e., about €10/m²).

For the owner of the servient tenement (who suffers the passage): you cannot refuse the passage if the state of landlocking is established, but you are entitled to compensation. You can also challenge the unusable nature of the existing exit. For example, if the landlocked owner has not carried out maintenance work, you can invoke his negligence. But the 1975 case law limits this defence: the key is the objective state of the exit, not the behaviour of the owner.

For the buyer of a property: before buying, check the accesses. A landlocked plot can be a source of litigation. Ask the seller to prove the existence of a right of way. If not, once you become the owner, you can apply to the court for a passage, but it is lengthy and costly.

If you are in this situation, you must act quickly: the right of way for landlocking is not subject to prescription (it is not extinguished by non-use), but the compensation due can be fixed by the judge. It is better to settle amicably.

Four tips to avoid this type of dispute

• Get a surveyor before buying land. He will check the accesses and existing easements. Cost: €800 to €1,500, but it can save you years of legal proceedings.
• Negotiate a consensual easement with your neighbour. Rather than going to court, propose a written agreement, registered with a notary. You will save legal fees and time.
• Keep evidence of the state of landlocking. Photos, bailiff's reports, witness statements. In case of a dispute, these elements will be valuable.
• Consult a specialist lawyer at the first signs of conflict. Mediation can often resolve the dispute in a few weeks, whereas a trial can last a year or more.

Further reading: related case law and developments

The 1975 decision is part of a consistent line of the Court of Cassation. One can cite the judgment of 8 July 1986 (No. 84-16.512), which specifies that the exit must be 'sufficient having regard to the purpose of the land'. Thus, building land requires vehicular access, while an agricultural plot may be satisfied with a dirt track.

More recently, the judgment of 10 September 2020 (No. 19-17.944) recalled that the state of landlocking is a question of fact, left to the assessment of the trial judges. The trend is therefore towards individualisation: each case is unique.

What this means for the future: if you are faced with a narrow or obstructed exit, do not be discouraged. The courts are attentive to the reality of the access. But beware: since the ALUR law of 2014, rights of way must be registered in the land registry to be enforceable against third parties. Bear this in mind.

Key points to remember

• Q: Can I obtain a right of way if my access is too narrow? A: Yes, if the narrowness makes the access unusable for the normal use of your property.
• Q: Do I have to pay compensation? A: Yes, the owner of the servient tenement is entitled to compensation proportionate to the inconvenience suffered.
• Q: What if my neighbour refuses to let me pass? A: You can apply to the judicial court to have the state of landlocking recognised and the passage fixed.
• Q: Can the state of landlocking cease? A: No, landlocking is perpetual, but the right of way is extinguished if the land ceases to be landlocked (for example, if a public road is created).
• Q: Can I use the passage for building work? A: Yes, within the limits of the purpose of the land. But if you increase the inconvenience, you may have to pay more compensation.

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