Right of Way for Landlocked Property: Proving an Administrative Prohibition Is Your Responsibility

Imagine: you have just bought a lovely villa in Marseille, in the Corniche district. To access it, you use a small path that crosses a neighbouring plot. One day, the owner of that plot puts up a 'no entry' sign. You are now blocked, with no other way out. You then think of the right of way for landlocked property (a right to pass over a neighbour's land when your land is landlocked, i.e., without access to the public highway). But beware: this right is not automatic. The question every owner in this situation asks is: who must prove that the sign is legal? You or the neighbour?

This decision of the Court of Cassation of 17 December 2020 (No. 19-11.376) provides a clear answer: it is for the owner claiming the right of way to demonstrate that the sign is based on an administrative decision (a municipal order, for example). Otherwise, the mere sign is not enough to create landlocked status. In short, if you cannot prove that the town hall has prohibited traffic, your claim for a right of way is likely to be rejected.

But what does this mean in practice for you, an owner in Marseille or Martigues? And how can you avoid ending up in this legal dead end? Let's break it down.

The facts: a story that happens every day

Mr X owns a plot of land in Marseille, in the 8th arrondissement. To access it, he traditionally uses a path called 'chemin de la côte Pugin', which crosses a neighbouring property owned by a SCI (property company). One day, the SCI puts up a 'no entry' sign at the entrance to this path. Mr X finds himself without access to his property.

What to do? He sues the SCI in court to have a right of way recognised due to landlocked status. He explains that without the path, his land is landlocked (no outlet to the public highway). The SCI, for its part, contests this: in its view, the path remains accessible, since the sign is not based on an administrative decision. In other words, the sign could be illegal, and therefore Mr X could simply ignore it.

The Tribunal de grande instance of Marseille ruled in favour of Mr X at first instance. The SCI appealed. The Court of Appeal of Aix-en-Provence confirmed the landlocked status and ordered the creation of a passage. But the SCI appealed to the Court of Cassation, arguing that the Court of Appeal had reversed the burden of proof (i.e., it required the SCI to prove that the sign was illegal, whereas it was for Mr X to prove that it was legal).

The reasoning of the court — explained

The Court of Cassation quashed the Court of Appeal's decision. It relied on Article 682 of the Civil Code (which provides for a right of way in case of landlocked status) and on the principles of burden of proof (Article 1353 of the Civil Code).

Its reasoning is as follows: for an owner to claim a right of way due to landlocked status, he must demonstrate that his land is indeed landlocked. However, if the landlocked status results from a prohibition on traffic (such as a sign), that prohibition must be legal. The proof of this legality lies with the person invoking the landlocked status, not the person who put up the sign. In short, it is for Mr X to prove that the sign was erected pursuant to a municipal order or other administrative decision.

The Court of Appeal had considered that the SCI had to prove that the sign was illegal. The Court of Cassation criticised it for reversing the burden of proof. In doing so, it reminded of a fundamental principle: it is for the claimant (the person claiming a right) to provide the evidence for what he asserts.

However, note: this decision does not mean that an owner blocked by a sign can never obtain a right of way. He simply must provide the administrative documents (resolution, order) that justify the prohibition. If the sign is illegal, he can challenge it before the administrative court, but that does not automatically entitle him to a right of way.

In my practice, I have come across cases where owners themselves put up a 'private' sign without authorisation, hoping to create a fictitious landlocked status. Case law is consistent: a sign without legal basis does not create landlocked status.

What this means for you — in practice

If you own land in Marseille or Martigues and are considering claiming a right of way because of a prohibition sign, you must imperatively gather the evidence of the legality of that sign. Without it, your claim will be rejected, like Mr X's.

Let's take a concrete example: you live in Martigues, in the Île district. To access your garage, you need to cross a private path. The neighbour puts up a 'Vehicles prohibited' sign. You think you are landlocked. But if you cannot prove that this sign was imposed by the town hall (for example, for safety reasons), the judge will consider that you still have potential access, and therefore no landlocked status. Result: you will not be able to obtain a right of way.

For buyers: before buying a property, check the access routes. If one of them is blocked by a sign, ask the seller to provide the corresponding administrative documents. Otherwise, the risk of ending up without a legal exit is high.

For landlord owners: if you rent out a landlocked property, your tenant could claim a rent reduction or terminate the lease for disturbance of enjoyment. It is better to regularise the situation before letting.

For co-owners: a sign installed in a co-ownership without a decision of the general meeting can be challenged. Landlocked status will only be recognised if the prohibition is legal.

Four tips to avoid this type of dispute

• Check the land registry and notarial deeds: before buying or building, verify the existence of existing rights of way. A path used for 30 years may be established by acquisitive prescription (usucapion).
• Obtain a certificate from the town hall: if a sign blocks access, ask the town hall whether it has issued an order. Keep this document carefully.
• Do not put up a sign yourself: installing a sign without legal basis may expose you to legal action for abnormal neighbourhood disturbance. Let the town hall or the legitimate owner act.
• In case of dispute, have a bailiff record it: a bailiff's report (costing approximately €200 to €300) can prove the state of landlocked status and the existence of the sign. This will be useful before the court.

Further reading: related case law and developments

This decision is in line with a consistent trend of the Court of Cassation requiring solid evidence to recognise a right of way. In a decision of 3 July 2013 (No. 12-20.685), the Court had already held that landlocked status must be real and not artificial: an owner cannot create the landlocked status himself by deliberately obstructing access.

Conversely, the Court recognised in a decision of 10 October 2019 (No. 18-19.255) that a right of way can arise from an administrative prohibition on traffic, provided that prohibition is duly established. Thus, the 2020 decision merely clarifies the burden of proof.

What this means for the future: judges will be increasingly demanding regarding the production of official documents. A mere sign, even an old one, will not suffice. It will be necessary to demonstrate that the competent authority has taken a formal decision.

Key points to remember

FAQ

• Q: Can I claim a right of way if a neighbour puts up a 'private' sign? A: No, as long as that sign is not based on an administrative decision. You must prove that the town hall or the owner has prohibited passage.
• Q: What should I do if I am blocked by a sign? A: Consult the town hall to find out if it has issued an order. If yes, you can claim a right of way. If no, you can challenge the sign before the administrative court.
• Q: What are the time limits for action? A: The action to recognise a right of way is subject to a 30-year prescription period. But it is urgent to act as soon as the sign appears, as evidence may disappear.
• Q: What is the cost of proceedings? A: Expect between €1,500 and €5,000 in lawyer's fees for a first instance, plus bailiff's costs (€200-300) and possible expert fees.
• Q: Can I pass despite the sign? A: Yes, if the sign is illegal. But beware: you risk legal action for trespass. It is better to obtain a court decision.

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 →