Right of Way Servitude: When Expropriation Deprives You of Access to Your Land

Imagine you own land in Sophia-Antipolis, with direct access to a road. One day, the municipality decides to widen a road to improve traffic flow towards the business park, and expropriates a strip of your plot. Result: your land becomes landlocked (without direct access to the public highway), stuck between the new road and neighbouring properties. How can you access your property? Must you negotiate with your neighbours, or can you demand a right of way?

This situation, far from theoretical, occurs regularly in our region, where rapid urbanisation and infrastructure projects modify the land landscape. In Cannes, between luxury property developments and tourist amenities, or in Sophia-Antipolis with the constant development of business zones, owners sometimes find themselves trapped by administrative decisions that transform their access.

The Court of Cassation provided a clear answer on 28 January 2021. This decision, concerning Article 684 of the Civil Code, overturns rules established for decades. It specifies that when landlocking results from expropriation for public utility, the usual rules no longer apply. But what does this mean concretely for you?

The Facts: A Story as Common as Any

The story begins with Mr. Durand, owner of land in Chambéry. His property, of comfortable size, benefited from direct access to a municipal road. Everything changes when the municipality of Chambéry decides to undertake a public utility project: creating a new traffic route. To do this, it carries out a partial expropriation (procedure by which a public authority compels an owner to transfer their property in exchange for compensation) on Mr. Durand's land.

After this expropriation, the initial land is divided into two distinct cadastral plots. The first, the one transferred to the municipality, becomes the new public highway. The second, which remains Mr. Durand's property, finds itself in a critical situation: it is now landlocked, surrounded by the new road on one side and neighbouring properties on the other. Mr. Durand can no longer access his land without crossing a neighbour's property.

Faced with this situation, Mr. Durand requests the establishment of a right of way servitude (right granted to an owner to cross another's land to access their own) over the neighbouring plot. His neighbour, Mr. Martin, categorically refuses. He invokes Article 684 of the Civil Code, which provides that when land becomes landlocked following the division of an estate by sale, exchange, partition, or other contract, the right of way can only be requested over lands resulting from this division. In other words, according to Mr. Martin, Mr. Durand could only request a right of way over the plot transferred to the municipality – which is impossible since it is now a public highway.

The dispute escalates to the courts. At first instance, the judges rule in favour of Mr. Martin. But Mr. Durand appeals. The Court of Appeal reverses the decision, considering that Article 684 does not apply in cases of expropriation. Mr. Martin, dissatisfied, appeals to the Court of Cassation. It is there that the highest French judicial court will definitively rule.

The Court's Reasoning – Analysed

The Court of Cassation, in its judgment of 28 January 2021, confirms the Court of Appeal's decision. Its reasoning rests on a fine analysis of Article 684 of the Civil Code and its purpose. The judges first recall the text: "If the landlocking results from the division of an estate following a sale, exchange, partition, or any other contract, the right of way can only be requested over lands that were the subject of these acts."

But be careful: the court emphasises that this provision specifically targets situations where the division results from a voluntary act between parties – sale, exchange, partition, etc. In these cases, the owners chose to divide their property and must assume the consequences. They cannot impose a servitude on third parties who did not participate in the operation.

Expropriation for public utility is radically different. It is not a voluntary act, but a constraint imposed by public authority. The owner, here Mr. Durand, did not choose to divide his land; he was compelled to do so to allow the realisation of a project of general interest. undefined, I have encountered cases where owners found themselves in similar situations after expropriations for road projects in the Grasse hinterland.

The court therefore considers that the spirit of the law requires not applying Article 684 in this context. If the expropriated owner could only request a right of way over the land transferred to the public authority – now a public highway – they would find themselves in a total impasse. This would contravene the fundamental principle that every owner must be able to access their property. In short, the case law protects the owner victim of expropriation against double jeopardy: losing part of their land and being left without access to the remainder.

This reasoning marks a significant evolution in case law. What few people know is that some previous decisions had sometimes interpreted Article 684 more restrictively. The Court of Cassation now clarifies the distinction between voluntary division and division compelled by expropriation.

What This Changes for You – Concretely

This decision has concrete implications for different profiles. If you are a landlord (who leases property) of land in Sophia-Antipolis that becomes landlocked after partial expropriation, you can now request a right of way servitude over neighbouring plots, even if they are not from the initial division. For example, if the metropolis expropriates a 5-metre strip of your 1,000 m² land to widen a road, and the remaining 950 m² becomes landlocked, you can negotiate – or have judicially established – a right of way over your neighbour's land. Compensation costs for the servitude generally range between 5% and 15% of the value of the crossed land, depending on its location and use.

For tenants, the situation is indirectly concerned. If you lease commercial premises whose access is compromised by expropriation, your landlord can re-establish access via a servitude. This avoids situations where commercial activity becomes impossible, which could justify a request for rent reduction or even lease termination. Timeframes to obtain a judicial servitude are generally 12 to 24 months, including a conciliation phase and court proceedings.

Purchasers must now be vigilant. Before buying land, check if expropriation projects are underway in the area. In Cannes, with numerous seafront development projects, this vigilance is crucial. If the land you covet risks becoming landlocked, ensure that rights of way are already established or planned. Otherwise, you might inherit an inaccessible property.

For co-owners, the question arises differently. If part of the common areas of a co-ownership is expropriated, making some private parts difficult to access, the decision could apply by analogy. But how to react? The first step is to consult the managing agent and a specialised solicitor to assess options.

Four Tips to Avoid This Type of Dispute

• Anticipate Urban Planning Projects: Regularly consult the PLU (Local Urban Plan) of your municipality and development projects. In Grasse as in neighbouring municipalities, these documents are accessible at the town hall or online. Identify future road axes or public facilities that could affect your land.
• Negotiate Preventive Servitudes: If you know a partial expropriation is planned, negotiate now with your neighbours the establishment of a right of way by notarial deed. An amicable agreement is always preferable to a judicial conflict, and less costly.
• Document the State of Affairs Precisely: Have a bailiff's report established detailing access to your land before any expropriation. This document will be crucial to demonstrate that the landlocking indeed results from the expropriation and not a prior situation.
• Consult a Chartered Surveyor: Before and after expropriation, have a boundary survey (precise delimitation of lands) carried out by a professional. This will avoid disputes over boundaries and facilitate the establishment of a servitude if necessary.

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

In-Depth Analysis: Related Case Law and Evolutions

This decision fits into a broader jurisprudential evolution. Already in 2015, the Court of Cassation (judgment no. 14-17.902) had considered that Article 684 did not apply when landlocking resulted from a division imposed by a land use plan. The logic is similar: when the division is not voluntary, the owner must not be penalised.

Conversely, a 2008 decision (no. 07-13.654) had strictly applied Article 684 to a division by sale, refusing any servitude over third-party lands. The current trend of courts is therefore towards a more nuanced application, distinguishing based on the origin of the division. For the future, this case law could extend to other situations of compelled division, such as transfers imposed by judgments or collective proceedings.

What does this mean concretely? Judges increasingly favour equity and access to property over the strict letter of the law when the owner is not the origin of the problematic situation. An evolution favourable to individuals facing administrative or legal constraints.

What You Must Absolutely Remember

FAQ – Frequently Asked Questions:

1. My land has become landlocked after expropriation. What can I do?
You can request a right of way servitude over neighbouring lands, even if they are not from the division by expropriation. The 2021 decision authorises this.

2. Must I go through the courts obligatorily?
No, an amicable agreement with your neighbour, established by notarial deed, is possible and preferable. The courts only intervene in case of disagreement.

3. How much does a right of way servitude cost?
The compensation due to the owner of the crossed land generally represents 5% to 15% of its value, plus boundary survey and notarial deed fees (approximately €1,500 to €3,000).

4. Does this rule also apply to tenants?
Indirectly yes. If access to your dwelling or premises is compromised, your landlord must re-establish access. You could request a rent reduction while waiting.

5. Is there a time limit to act?
Yes, the limitation period (period beyond which one can no longer act in court) is 5 years from when you become aware of the landlocking. Act quickly.

Do you find yourself 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 →