Right of way and landlocked property: when the possessory judge has sole discretion

Imagine: you are the owner of a house in Bollène, with a nice plot at the back of the property. To access the street, you have always used a path that crosses your neighbour's property. Until one day the neighbour installs a gate and refuses you passage. What can you do? The answer lies in one word: the possessory action (a fast-track procedure to protect peaceful possession). But you still need to prove that your land is landlocked, i.e. without sufficient access to the public highway. That is precisely what the Court of Cassation recalled in a landmark ruling of 5 November 1970. And the possessory judge (the judge who rules urgently on possession) is the sole master in assessing this landlocked situation.

The facts: a story that happens every day

Mr Brunschwig owns a plot in Bollène. To access the street, he uses a three-metre-wide passage crossing the property of his neighbour, Mr Horde. A dispute arises: Mr Horde contests the right of way and prevents Brunschwig from using the path. The latter then brings a complainte action (a possessory action aimed at stopping a disturbance of possession) to be maintained in his right of way. He argues that his land is landlocked because the three-metre passage is insufficient for normal use. The court of first instance rules in his favour. But Mr Horde appeals. The Avignon Court of Appeal reverses the judgment: it considers that Brunschwig's land is not landlocked because it has a three-metre access to the street. Brunschwig appeals to the Court of Cassation. The Court of Cassation dismisses his appeal, confirming that the possessory judge has sole discretion to assess the existence of the landlocked situation. In other words, it is for the trial judge (and not the Court of Cassation) to decide whether a property is landlocked or not.

The reasoning of the court — analysed

The Court of Cassation relies on the principle that the possessory judge has sole discretion to assess the facts of landlocking. In this case, the Court of Appeal had found that Brunschwig's property had access to the street via a three-metre passage. This finding of fact was sufficient to rule out the state of being landlocked. The Court of Cassation recalls that the possessory action is only available if the land is genuinely landlocked, i.e. without sufficient outlet onto the public highway. Article 682 of the Civil Code (which provides for a right of way for landlocked property) is not directly at issue here, but the reasoning draws inspiration from it: landlocking is a question of fact. In short, the trial judges have full discretion to decide whether or not a piece of land is landlocked. And the Court of Cassation cannot challenge this assessment, unless there is an error of law. What few people know is that the possessory action is not used to assert a right of ownership, but only to protect peaceful possession. If the land already has an access, even a narrow one, it is not landlocked and therefore no complainte action is possible.

What this means for you — practically

For the owner who wants to obtain a right of way: if your land already has access to the street, even a narrow one (for example 2 metres), you cannot invoke landlocking to demand a wider passage through a possessory action. You will have to bring a petitory action (action on the merits) to establish a conventional right of way or a servitude by destination of the owner. For the neighbour who is facing a claim: this decision protects you: if access exists, the judge cannot impose an additional passage through the possessory route. However, be careful: if you block an existing passage that has been used for more than a year, you risk a réintégrande action (a possessory action to restore possession lost by a voie de fait) without having to prove landlocking. For the buyer: before buying a plot in Apt, check that there is sufficient access. If the only access is a 2.5 metre path, know that the seller cannot obtain a wider passage through a complainte action. In my practice, I have come across cases where owners in Apt bought without checking and found themselves blocked. A concrete example: a 5,000 m² plot with a 2-metre access was held not to be landlocked by the Avignon tribunal, because access existed. The owner had to negotiate a widening amicably.

Four tips to avoid this type of dispute

• Check your title deeds: before any action, see if a right of way is mentioned. If so, its extent is defined by the deed.
• Never block a passage that has been used for more than a year: you risk a réintégrande action, which requires restoring the passage without discussion on the merits.
• In case of dispute, prefer mediation: a widened passage agreed amicably often costs less than a lawsuit. A property lawyer can help you reach an agreement.
• Have the state of the premises recorded by a bailiff: if you use a passage, have it recorded regularly. In case of disturbance, this record will be valuable evidence.

Further reading: related case law and developments

The position of the Court of Cassation has been consistent since this 1970 ruling. We can cite a ruling of 11 May 2005 (no. 03-18.442) which recalls that the possessory action is available to someone who has possessed for at least one year, and that landlocking is a question of fact. More recently, a ruling of 28 March 2019 (no. 18-11.304) specifies that the possessory judge may rely on the state of landlocking to order a passage, but only if access is non-existent or insufficient. The trend is therefore towards the protection of established possession, without calling into question the sole discretion of the trial judges. For the future, if you own a landlocked plot, know that you can also act on the basis of article 682 of the Civil Code to obtain a judicial right of way, but this action is longer and more costly.

Summary and next steps

FAQ:

Can I obtain a passage by complainte if my access is too narrow? No, if access exists, even narrow, the possessory judge cannot order a wider passage. You need an action on the merits.

What should I do if my neighbour blocks my passage? If you have been using the passage for more than a year, you can bring a réintégrande action within one year of the disturbance. No need to prove landlocking.

What are the time limits for acting? The possessory action must be brought within one year of the disturbance. After this period, you lose possessory protection.

How much does a complainte action cost? Expect between €1,500 and €5,000 in lawyer's fees and procedural costs, depending on complexity.

Can I defend myself alone? Not recommended: possessory law is technical. A lawyer specialising in property law is strongly recommended.

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