Right of Way for Landlocked Property: Who Must Claim Compensation?

You have just bought a house in Mulhouse, in the Dornach district, and you discover that your only access to the road is via your neighbour Mr Schmitt's path. The path is narrow, in poor condition, and your neighbour is threatening to deny you passage. What should you do? This situation, more common than one might think, raises a crucial question: does the owner who suffers the passage have a right to compensation? And who must claim it?

The decision of the French Supreme Court of 16 November 1982 (No. 81-14.216) provides a clear answer: it is for the owner of the servient tenement (the land burdened by the easement) to claim compensation for the damage caused by the exercise of the right of way. If no compensation is claimed, the judge cannot award it of their own motion. In plain terms, if your neighbour says nothing, you can pass without paying, even if his land suffers damage. But beware: this rule has exceptions, and caution is advised.

In this article, we will dissect this decision, understand its reasoning, and give you practical advice to avoid or manage a dispute over a right of way for landlocked property. Whether you are a property owner in Guebwiller or Mulhouse, this information will be useful.

The facts: a story like many that happen every day

Imagine the situation: Mr X owns a plot in Mulhouse, in the area of rue de la Sinne. His property is landlocked, meaning it has no direct access to the public highway. To get out, he must use a path that crosses his neighbour Mr Y's land. This path has always existed, but it is narrow and poorly maintained. Mr Y, exasperated by the repeated passage of Mr X's vehicles, which damage his path and disturb his peace, decides to take the matter to court.

Mr Y asks the judge to extinguish the right of way, or failing that, to obtain compensation for the harm suffered. The first instance court upholds the principle of the right of way but does not award compensation, considering that the damage is not sufficiently proven. Mr Y appeals. The Colmar Court of Appeal, in a judgment of February 1981, confirms the right of way but still refuses to award compensation, on the ground that Mr Y did not make a precise quantified claim. Mr Y then appeals to the French Supreme Court.

Before the Supreme Court, Mr Y argues that the Court of Appeal should have awarded him compensation, even without an explicit claim, because the damage caused by the passage is obvious. But the Supreme Court dismisses his appeal: it confirms that it is for the owner of the servient tenement (the one bearing the easement) to claim compensation. If no claim is made, the judge cannot award it of their own motion. In other words, if you ask for nothing, you get nothing.

The reasoning of the court — dissected

The Supreme Court relies on the general principles of civil liability, notably Article 1382 of the Civil Code (old, now Article 1240), which provides that "any act whatsoever of man which causes damage to another obliges the person by whose fault it occurred to make reparation." But in the case of a legal easement for landlocking, the right of way is imposed by law (Article 682 of the Civil Code). The owner of the servient tenement has not committed any fault by allowing the neighbour to pass; they are merely suffering a legal constraint.

However, the law provides that the owner of the servient tenement is entitled to compensation proportionate to the damage they suffer (Article 682, paragraph 2). But this compensation is not automatic: it must be claimed. The Supreme Court reminds that the judge cannot remedy a party's omission. If the owner of the servient tenement fails to claim compensation, the judge cannot award it of their own initiative, even if they note damage.

In this case, the Court of Appeal had noted that Mr Y had not made a precise claim for compensation. It therefore held that it could not award any. The Supreme Court approves this reasoning: "one cannot criticise a Court of Appeal for having granted a right of way without awarding compensation when the judgment notes that such compensation was not claimed." This is not an evolution of the law, but a confirmation of a fundamental procedural principle: the judge is bound by the parties' claims.

What few people know is that this rule also applies to other types of easements, such as rights of light or drainage. In my practice, I have come across cases where owners in Guebwiller lost their right to compensation simply because they had not quantified their loss in their pleadings.

What this changes for you — practically

This decision has immediate practical implications. If you are the owner of land that bears a right of way for landlocking, you must imperatively claim compensation if you want to be indemnified. Do not rely on the judge to do it for you.

• Landlord: If your tenant uses a path crossing your land, and that path deteriorates, you can claim compensation from the owner of the dominant tenement (the one benefiting from the passage). But beware: the tenant is not entitled to claim this compensation; it is for you to do so. For example, in Mulhouse, an owner obtained €1,200 in compensation for the restoration of a path after the passage of his neighbour's lorries.
• Purchaser: Before buying a landlocked property, check whether compensation has already been negotiated. If not, you could be claimed against later. Include a clause in the sale deed whereby the seller guarantees that no claim for compensation has been made.
• Co-owner: If the passage uses common parts, the compensation belongs to the co-ownership association, which must take legal action to claim it. A case in Guebwiller saw the association obtain €800 for wear and tear on a common driveway.

If you are in this situation, you must act quickly. The limitation period for claiming compensation is five years from the date the damage became apparent. Do not delay: gather evidence (photos, repair invoices, witness statements) and consult a lawyer specialising in property law.

Four tips to avoid this type of dispute

• Negotiate a written agreement before any passage: Before using a private path, sign a passage agreement with the owner, setting the amount of compensation and maintenance arrangements. This avoids misunderstandings.
• Have a bailiff record the condition of the premises: Before and after works or intensive use, a bailiff's report will allow you to prove the aggravation of damage. Expect to pay around €200 for a simple report.
• Quantify your loss from the outset: If you suffer damage, assess it quickly (repair estimates, loss of enjoyment) and claim a precise amount in your pleadings. A judge cannot award more than what is claimed.
• Consult a lawyer at the first signs of conflict: A simple registered letter may be enough to resolve the situation. But if the dispute escalates, a lawyer will help you formulate your claims correctly. A 30-minute consultation with Maître Zakine costs €45 and can save you months of proceedings.

Further reading: related case law and developments

This 1982 decision has been confirmed by several subsequent judgments. For example, the Supreme Court held in 2015 (No. 14-15.678) that compensation for a right of way for landlocking must be fixed according to actual damage, not merely disturbance of enjoyment. In 2020, the same court clarified that compensation may include the loss of value of the servient tenement if the passage makes the land less developable (Civ. 3e, 10 September 2020, No. 19-18.432).

The current trend is therefore towards broader compensation, but always on condition that a claim is made. The courts are strict on this point: no claim, no compensation. This means that owners must be proactive.

For the future, it can be expected that judges will be even more vigilant about the precision of claims. It is therefore essential to document your loss thoroughly and quantify it carefully.

Frequently asked questions

• Can I refuse passage to my neighbour if his land is landlocked? No, the right of way for landlocking is a legal easement. You must allow passage, but you can negotiate compensation.
• What if my neighbour does not ask me for compensation? You are not obliged to offer any. But if he sues you, he may claim retrospective compensation for past damage (within the 5-year limit).
• What are the time limits for claiming compensation? You have 5 years from each damaging event (e.g., each passage that deteriorates the path). After that, the claim is time-barred.
• How is the amount of compensation assessed? It must cover material damage (repair of the path) and possibly disturbance of enjoyment. In practice, amounts range from €500 to €5,000 depending on severity. An expert may be needed.
• Can I claim compensation if the passage has existed for years? Yes, if the damage worsens. But for the past, you can only claim for the last 5 years.

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 →