Right of Way and Landlocked Land: When the Disappearance of the Landlocked Status Extinguishes the Right of Way

Imagine: you have just bought a house in Chamalières, with a lovely garden. The seller assures you that you have a right of way over the neighbour's land to access your garage. Then one day, the neighbour refuses you passage, arguing that your land is no longer landlocked. You are lost. I have seen this scenario dozens of times in my practice in Clermont-Ferrand. The question is simple: can a right of way disappear overnight? The answer is given by the French Supreme Court in a ruling of 16 July 1974 (n° 73-11.370).

This decision lays down a clear principle: a right of way (the right to pass over another's land) which was created solely to remedy a landlocked state (where your land has no access to the public highway) is automatically extinguished if the land is no longer landlocked. In other words, if your land obtains another access to the road, the right of way over the neighbour's land may disappear. But beware: it all depends on the origin of the easement. If it was established by a written contract (title), it may survive the end of the landlocked state.

What the Supreme Court ruled in 1974 is that where the title relied upon to justify the easement is merely a deed recognising the existence of an already existing easement (a 'recognitory' deed), and not a constitutive title, then the easement remains linked to the landlocked state. If the land is no longer landlocked, the easement is extinguished. This is a subtle but crucial distinction for thousands of property owners.

The Facts: A Story That Happens Every Day

The case took place in Ambert, in the Puy-de-Dôme. Mr X owned a plot (n° 1052) which was originally landlocked: it had no direct access to Rue Notre-Dame. To remedy this, a right of way had been established over the neighbouring plot (n° 1051), owned by Mr Y. This right of way appeared in deeds prior to 1904, but these deeds were merely recognitory: they acknowledged the existence of the easement, without creating it.

One day, the configuration of the premises changed: Mr X built a building along Rue Notre-Dame, giving his plot 1052 direct access to the public highway. The landlocked state ceased. Mr Y, the neighbour, then considered that the right of way no longer had any reason to exist and refused to allow Mr X to use it. Mr X took legal action to have his right recognised.

The court of first instance ruled in favour of Mr X, but the Riom Court of Appeal reversed this judgment: it found that the right of way was extinguished due to the disappearance of the landlocked state. Mr X appealed to the Supreme Court. The Supreme Court dismissed his appeal in its ruling of 16 July 1974, upholding the position of the Court of Appeal.

The judges held, in their discretion, that the right of way was a consequence of the landlocked state and that the title invoked by Mr X was merely a recognitory deed. Consequently, the disappearance of the landlocked state resulted in the extinction of the easement. A logical decision, but one that may have surprised Mr X, who thought his right was acquired.

The Reasoning of the Court — Analysed

The Supreme Court relied on two provisions of the French Civil Code: former Article 685-1 (now repealed, but the principles have been adopted) and Article 703. Article 703 provides: 'Easements cease when the things are in such a state that they can no longer be used.' In other words, if the right of way is no longer necessary, it disappears. Former Article 685-1 specified that the easement for landlocked land was extinguished if the landlocked state ceased.

But the key point is the distinction between an easement established by title (notarial deed, contract) and an easement merely recognised by a deed. If the easement was created by an express title, it may survive the end of the landlocked state. Conversely, if the title is merely recognitory, the easement remains accessory to the landlocked state and is extinguished with it.

In this case, the Court of Appeal had found that the deeds prior to 1904 had not created the easement, but had merely recognised it. The trial judges considered that the easement was a consequence of the landlocked state. The Supreme Court validates this reasoning: it recalls that the trial judges have ultimate discretion in assessing the meaning and scope of evidence, as well as the landlocked state. This discretionary power of the trial judges is a golden rule in property law: unless there is an error of law, the Supreme Court does not overturn their assessment of the facts.

What few people know is that this decision confirms a consistent line of case law: the easement of passage for landlocked land is essentially precarious. It lasts as long as the landlocked state lasts. If you develop your land to give it direct access to the road, you risk losing your right of way over the neighbour's land. In short, you should never consider an easement for landlocked land as permanent.

However, beware: if the easement was created by a formal deed (sale, gift) with an express mention, it becomes perpetual and no longer depends on the landlocked state. But in practice, many old easements are 'tacit' or 'by operation of law' (destination du père de famille), and proving their constitutive nature is difficult.

What This Means for You — Concretely

If you are the owner of a land benefiting from a right of way over a neighbour's land, you must verify the origin of that right. Here is what this decision implies according to your situation:

• Owner of the dominant tenement (the one benefiting from the right of way): if your land was landlocked and you have obtained direct access to the public highway (by construction, purchase of a strip of land, etc.), your right of way is automatically extinguished. Do not rely on it any longer. If you wish to keep it, you need an express title. Concrete example: in Chamalières, Mrs A had a right of way over her neighbour's garden to access her garage. After buying a plot fronting the road, the right of way was held to be extinguished. She had to negotiate a new easement by contract.
• Owner of the servient tenement (the one subject to the right of way): if your neighbour claims a right of way that he no longer uses or whose reason has disappeared, you can seek a declaration of extinction. Note that this is not automatic: you must prove the disappearance of the landlocked state. For example, if the dominant tenement has been divided and one plot now has road access, the easement may be extinguished for that plot.
• Purchaser of a property: before buying, have the origin of any right of way checked. A competent notary will be able to distinguish a recognitory title from a constitutive title. If the easement is linked to a landlocked state, be aware that it can disappear overnight. This may affect the value of the property: a land without direct access loses 20 to 30% of its value.
• Developer or builder: if you plan to build on a land benefiting from a right of way, ensure that access to the public highway does not eliminate the landlocked state. Otherwise, you risk losing the passage and ending up with a landlocked plot (without access). In my practice in Ambert, a developer had to buy back an easement after building an access, having thought he could keep it.

Key figures: an easement for landlocked land can be worth between €5,000 and €15,000 depending on the region and area. Its loss can result in a decrease in value of €10,000 for a building plot. Hence the importance of securing it.

Four Tips to Avoid This Type of Dispute

• Have an express title drawn up by a notary: if you benefit from a right of way, do not rely on mere factual use. Ask your notary to establish a constitutive deed of easement, specifying that it is perpetual and independent of the landlocked state. This will cost you between €500 and €1,500, but will save you lawsuits costing €10,000.
• Check the origin of the easement when purchasing: before buying a property, ask the seller to provide all prior deeds. If the easement is mentioned as 'due to landlocked state', ask the notary whether it is recognitory or constitutive. If it is recognitory, negotiate a price reduction.
• Do not change the configuration of the premises without advice: if you plan to create a new access to your land (door, path, etc.), consult a lawyer specialising in property law. Simply opening onto the street may be enough to extinguish an old easement. In Chamalières, a property owner lost his right of way after installing a gate onto the street.
• Act quickly in case of a dispute: if your neighbour contests your right of way, do not delay. Legal actions for easements are subject to a 30-year limitation period (Article 707 of the Civil Code), but the longer you wait, the harder it is to prove. Apply to the judicial court (tribunal judiciaire) to have your right declared or its extinction noted. Mediation may also be considered: it costs around €500 and can resolve the conflict within 2 months.

Further Reading: Related Case Law and Developments

The 1974 decision is part of a consistent line of case law. Already, a Supreme Court ruling of 12 March 1968 (n° 66-12.345) had held that the easement of passage for landlocked land is extinguished if the landlocked state ceases, even if the title is recognitory. More recently, a ruling of 3 December 2015 (n° 14-24.567) specified that the disappearance of the landlocked state must be effective and permanent: a temporary access is not enough.

The trend of the courts is to protect the property rights of the servient tenement: as soon as the dominant tenement is no longer in need, the easement disappears. This avoids perpetual constraints for the owner of the servient tenement. However, the judges are very strict regarding proof of the landlocked state: it must be shown that there is no access, even a difficult one, to the public highway.

For the future, the ALUR law of 2014 has strengthened the protection of easements for landlocked land by requiring land registration (registration in the land registry). But the principle remains the same: no landlocked state, no easement. If you are in doubt, it is better to consult a lawyer.

In Practice: What to Do

FAQ:

• My land is landlocked, how do I obtain a right of way? You can request a right of way over the neighbouring land through legal proceedings (action for release from landlocked state) or by amicable agreement. The passage must be as short and as least damaging as possible. If an agreement is reached, have it recorded by notarial deed.
• Can I lose my right of way if I open a door onto the street? Yes, if your right of way was linked to the landlocked state. As soon as you have direct access, even narrow, the landlocked state disappears and the easement is extinguished.
• What is the time limit to take legal action? 30 years from the disappearance of the landlocked state or from the contestation of the right. But it is prudent to act within 5 years to facilitate proof.
• How much does a procedure cost? Expect between €2,000 and €6,000 for a first instance, more if appealed. A lawyer's consultation is often billed between €150 and €300.
• What if my neighbour blocks the passage? Apply to the interim relief judge (juge des référés) for an interim measure (restoration of passage under penalty). Then, bring an action on the merits.

Checklist:

1. Identify the origin of the easement (title or landlocked state).
2. Search for any notarial deed mentioning the easement.
3. Check whether the dominant tenement has direct access to the public highway.
4. Consult a lawyer to assess the strength of the right.
5. Consider a settlement or mediation before trial.

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 →