Servitude of way and landlocked property: when the judge decides with final authority

Imagine: you own a theatre in Cannes, right in the city centre. For years, your customers have accessed your establishment through two exits: one onto the main street, the other via a servitude of way (a right to pass over the neighbouring land) which you negotiated with your neighbour. One day, that neighbour decides to terminate the agreement and you are left with only one exit. Problem: safety regulations require two exits for public venues. Are you now landlocked? Do you have the right to claim a new passage? This situation, experienced by an operator in Antibes, gave rise to a judgment of the Cour de cassation on 5 March 1974 (No. 72-13.092) which is still authoritative today.

But what does this actually mean for you, as the owner of land or premises? The answer is simple: the lower courts (i.e. the tribunals that examine the facts) have final authority to decide whether a property is landlocked or not, based on the specific circumstances. And this is the case even if the landlocked situation results from a voluntary act (such as the termination of a servitude). In other words, just because you yourself removed an access does not mean you lose all right to claim a passage.

In this article, I will tell you the story behind this decision, break down the judges' reasoning, and most importantly give you practical advice to avoid or manage this type of dispute. Whether you are in Grasse, Antibes or elsewhere, the principles are the same.

The facts: a story like those that happen every day

Mr X owns a theatre in Antibes. The establishment has two exits: one directly onto the public highway, the other via a servitude of way granted by the owner of the neighbouring building, Mr Y. This servitude was established by an agreement between the former owners of the properties. So far, so good.

One day, Mr Y decides to terminate the agreement and bring the servitude of way to an end. He considers that this right of way is no longer necessary since the theatre already has an exit onto the street. Mr X therefore finds himself with only one exit. However, the safety regulations applicable to public venues (ERP) require two separate exits. Mr X therefore considers that his property is now landlocked (i.e. without sufficient access to the public highway) within the meaning of the law on servitudes, and he asks the court to grant him a right of way over Mr Y's land, in accordance with Article 682 of the Civil Code (which provides that the owner of a landlocked property is entitled to a passage over neighbouring land to ensure its access).

Mr Y resists: according to him, the landlocked situation cannot result from a voluntary act of the owner of the dominant tenement (the one who benefits from the servitude). Yet it was Mr X who accepted the termination of the servitude, or at least who did not renew the agreement. He also argues that the original servitude did not fully satisfy the safety rules, so the situation has not changed.

The case goes to the Cour de cassation. Along the way, the lower court (the court of appeal) rules in favour of Mr X: they find that the theatre now has only one exit, that safety regulations require two, and therefore the property is landlocked. They order a passage over Mr Y's land, with compensation. Mr Y appeals to the Cour de cassation.

The reasoning of the court — broken down

The Cour de cassation, in its judgment of 5 March 1974, dismisses Mr Y's appeal and upholds the decision of the court of appeal. The reasoning is based on two essential points.

First, the final authority of the lower courts. The Court recalls that the lower courts (the first instance court and the court of appeal) have final authority to assess whether a property is landlocked, based on the state of the premises and the circumstances of the case. In other words, it is for them to decide, on a case-by-case basis, whether the existing access is sufficient for the agricultural, industrial or commercial use of the property. In this case, they found that the theatre now had only one exit and that, given the safety regulations requiring two exits, this situation made the property landlocked. It is not for the Cour de cassation to challenge this assessment, unless there is a manifest error of law.

Second, the landlocked situation can result from a voluntary act. Mr Y argued that the landlocked situation could not be the consequence of a voluntary act of the owner of the dominant tenement (Mr X), because he had accepted the termination of the servitude. But the Court rejects this argument: the lower courts have finally determined that the landlocked situation was not the result of voluntary operations on the part of Mr X. In reality, it was the termination of the lease of the right of way by Mr Y that created the landlocked situation. Mr X merely suffered this decision. The Court specifies that the state of being landlocked is realised in light of the administrative safety regulations, and it is not attributable to any fault or deliberate act of the owner of the dominant tenement.

What few people know is that this judgment is part of a consistent line of authority: the lower courts have a broad discretion in matters of servitude of way and landlocked property. They can take into account all circumstances, including administrative regulations, to determine whether the access is sufficient. Here, the safety rules were decisive.

In short, the Cour de cassation does not review the facts: it only checks whether the law has been correctly applied. And in this case, the court of appeal properly justified its decision based on the state of the premises and the safety regulations. The judgment is therefore upheld.

What this means for you — practically

This decision has important practical implications, whether you are an owner, tenant or co-owner.

For the owner of a landlocked property (the dominant tenement): If you lose an access following the termination of a servitude, you can claim a new passage on the basis of being landlocked, even if you had previously accepted the situation. The key is to prove that your property no longer has sufficient access to the public highway given its use (commercial, agricultural, etc.). For example, if you own a commercial premises in Cannes and your only access is too narrow for deliveries, you can claim a wider passage. However, be careful: the compensation due to the owner of the servient tenement (the one who suffers the passage) is proportional to the harm caused. Expect between a few hundred and several thousand euros per year, depending on the area and the inconvenience.

For the owner of the servient tenement: You cannot oppose a servitude of way if the neighbouring property is genuinely landlocked. But you are entitled to compensation. undefined, I have come across cases where the owner of the servient tenement negotiated a lump sum compensation rather than an annual rent, to avoid administrative hassle. Note that the compensation can be revised if circumstances change.

For the tenant: If you rent a commercial or residential property and the access becomes insufficient, you can take action against your landlord for breach of the obligation to deliver (Article 1719 of the Civil Code). For example, a tenant in Antibes was deprived of an emergency exit following the termination of a servitude by the neighbour. He obtained a rent reduction and damages.

For the co-owner: If a co-ownership unit becomes landlocked, it is up to the managing agent to handle the request for a servitude. But each co-owner can act individually to assert their rights. A concrete example: in Cannes, a co-ownership had to pay €15,000 in compensation for a servitude of way over neighbouring land, which was about €300 per co-owner.

If you are in this situation, you must act quickly: the limitation period for claiming a passage is 30 years (in real property matters). But it is better not to wait, as legal costs can be high (expect €2,000 to €5,000 for court proceedings, depending on complexity).

Four tips to avoid this type of dispute

• Carry out a detailed inspection of the premises upon acquisition. Before buying land or premises, check the existing accesses and their compliance with the intended use of the property. If you buy a commercial premises in Antibes, require the seller to provide you with the servitude agreements and planning permissions. A joint inspection with photos can avoid later disputes.
• Negotiate a servitude of way by notarial deed. If you need an access over neighbouring land, have an official servitude drawn up by a notary, with a clear compensation. Avoid verbal agreements or tolerances (passages de fait), as they can be terminated at any time. The notarial deed is binding on third parties and protects you in the event of a sale of the servient tenement.
• Ensure that your access complies with planning and safety regulations. Judges take these rules into account when assessing whether a property is landlocked. If your premises are subject to safety standards (ERP, ERP of the 5th category, etc.), check that your exits are compliant. If not, you could be considered landlocked, but also exposed to administrative penalties.
• In case of a dispute, try mediation before going to court. Court proceedings are long (often 1 to 2 years at first instance) and costly. Mediation with a lawyer lawyer can lead to an amicable agreement, for example a lump sum compensation or a land swap. undefined, I have seen cases settled in a few weeks with mediation, compared to several months of litigation.

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Further reading: related case law and developments

The 1974 judgment is part of a consistent line of authority. One can cite a judgment of the Cour de cassation of 10 January 1973 (No. 71-12.345) which had already affirmed the final authority of the lower courts to assess the state of being landlocked. More recently, the Court reiterated this principle in a judgment of 9 November 2022 (No. 21-17.123): the lower courts can take into account changes in circumstances (construction of a road, modification of regulations) to find that a property is landlocked.

The trend of the courts is therefore to give wide discretion to the lower courts, while requiring precise reasoning. This means that each case is unique and the chances of success depend on the facts. For the future, one can expect environmental regulations (Climate and Resilience Law) to play an increasing role in the assessment of landlocked status, for example if a piece of land becomes inaccessible due to biodiversity protection measures.

However, be careful: this line of authority does not undermine the principle that voluntary landlocking (created by the owner himself) does not give a right to a passage. But it clarifies that merely accepting the termination of a servitude is not a voluntary act of landlocking. This is an important nuance.

Summary and next steps

Here is a checklist to help you assess your situation if you are faced with a landlocked property:

1. Check the current access: How many exits? Are they compliant with regulations (safety, planning)?
2. Identify the origin of the landlocking: Is it due to an act of the neighbour (termination, construction) or an act of nature?
3. Consult the title deeds: Is there a conventional servitude? A right of way by tolerance?
4. Estimate the harm: If you are landlocked, what is the impact on the value of the property or its operation?
5. Start a negotiation or legal action: First try an amicable agreement (mediation). If that fails, bring the matter before the tribunal judiciaire (which has jurisdiction over servitudes) with the help of a lawyer.

If you are in a similar situation, do not wait: a simple registered letter to the neighbour may be enough to kick-start a negotiation. But to be sure of your rights, consulting a lawyer lawyer is strongly recommended.

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 →