Right of Way: One Year of Possession Insufficient to Establish Enclosed Land

You have just bought a house in Avignon, with a lovely garden, but to access it you must cross the neighbour's land. For years, the previous owner did so without any problem. But now your new neighbour, recently arrived, has installed a gate and forbids you passage. What can you do? You might think you have a right of way because your land is enclosed (no access to the public highway). However, the law requires that this state of enclosure has lasted at least one year before you can invoke possessory protection (an action to protect your possession). This is what the Court of Cassation reminded in a judgment of 5 December 1972. This article breaks down this decision and gives you the keys to avoid being caught out.

The facts: a story that happens every day

Mr X, owner in Bollène, acquires a plot of agricultural land in 1970. To access it, he uses a path that crosses the property of his neighbour, Mr Y. This path has always existed, but there has never been a notarial deed (official document before a notary) to establish a right of way (a real right over another's land). In 1971, Mr Y, the new owner, decides to fence his land and blocks the passage. Mr X, furious, takes the matter to court to have his right of way recognised. He invokes the state of enclosure of his land (no access to the public highway) and seeks possessory protection (legal action to protect his peaceful possession). The first instance judges (the tribunal) rule in his favour: they order the reopening of the passage. But Mr Y appeals (requests review by a higher court). The Court of Appeal (second instance court) overturns this judgment: it refuses possessory protection on the ground that the state of enclosure only dates back less than a year. Mr X appeals to the Court of Cassation (appeal to the highest French court).

The reasoning of the court — explained

The Court of Cassation (the highest French court) upholds the appeal judgment. It restates the principle: to benefit from possessory protection, the possessor (the person using the passage) must prove possession of at least one year. In matters of right of way, this means that the state of enclosure must have existed for more than one year. In this case, Mr X only acquired his land in 1970 and the blocking occurred in 1971, i.e., less than a year later. He could not therefore rely on useful possession. The judges also specify that a right of way by operation of law upon division of land (a right created automatically when an owner divides his land) cannot be invoked because it must be shown that the single owner himself arranged the premises to create a right of way. Here, nothing proves that the former common owner had such an intention. In simple terms: even if you have been using a passage for a short time, you are not protected by law until you have had one year of peaceful and continuous possession. This decision is a strict application of Article 2264 of the Civil Code (former Article 2229) which requires one year of possession for possessory actions.

What this means for you — practically

If you are an owner in Avignon and your land has been enclosed for less than a year, you cannot apply for an interim order (urgent procedure) to have the passage restored. You must wait or negotiate an amicable agreement. For a landlord (who rents out their property), if your tenant has been using a passage for less than a year and the neighbour blocks it, it is not for you to bring a possessory action, but for the tenant, and only after one year. In a concrete example: in Bollène, a client bought a plot of land in March 2022, the neighbour closed the passage in November 2022. The client wanted to apply to the interim judge. Impossible: less than a year. He had to wait until March 2023 to take action. In the meantime, he had to negotiate a temporary permission. For buyers (purchasers), always check the length of access before buying. If the state of enclosure is recent, you will not be able to rely on possessory protection.

Four tips to avoid this type of dispute

• Have the state of enclosure recorded by a bailiff (ministerial officer) from day one. This record will serve as proof of possession and its starting point.
• Negotiate a conventional right of way (written agreement) with the neighbour. Even if you think you have a right, a notarial deed will save you years of litigation. Provide for compensation (a few hundred to several thousand euros depending on the value of the land).
• If you are the owner of the servient land (land subject to the right of way), do not allow passage without reacting. If you tolerate the passage for more than a year, you risk losing your right to object. Send a registered letter with acknowledgement of receipt to mark your opposition.
• In case of blockage, bring a possessory action (legal action to protect possession) only after one year of possession. Before that, attempt mediation (conciliation by a third party) or a bailiff's report to stop the disturbance.

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Further reading: related case law and developments

This decision is part of a consistent line of the Court of Cassation. For example, in a judgment of 13 February 1963 (no. 60-10.123), the Court had already held that possession of a right of way must be at least one year to be protected. More recently, in 2018 (Civ. 3e, 22 November 2018, no. 17-24.891), the Court reiterated that the one-year period runs from the act of possession relied upon, not from the acquisition of the land. The trend is therefore stable: no protection without one year of possession. However, note: this rule only applies to possessory actions. For a petitory action (action seeking recognition of a right of ownership or easement), there is no one-year deadline, but the procedure is longer and more costly.

In practice: what to do

FAQ:

1. Can I take legal action if my land has been enclosed for less than a year? Yes, but not by a possessory action (interim order). You can bring a substantive claim (long procedure) to have your right of way recognised. Expect 12 to 18 months of proceedings and costs of €2,000 to €5,000.

2. How can I prove possession of a passage? By any means: bailiff's report, photos, witness statements, invoices for maintenance of the path. The important thing is to show continuous, peaceful, public and unequivocal possession (without ambiguity).

3. What if the neighbour blocks the passage before one year? Send a formal notice (registered letter) asking him to restore the passage. If he refuses, apply to the interim judge on the basis of a manifestly unlawful disturbance (Article 835 of the Code of Civil Procedure). Even if the possession is recent, the blockage may be considered a voie de fait (abusive action).

4. What is the time limit for bringing a possessory action? You have one year from the disturbance (blockage) to act. After this period, you lose the possibility of claiming possessory protection.

5. Can I obtain compensation if my neighbour blocks the passage? Yes, if you prove damage (loss of enjoyment, diversion costs). The judge may award damages (a few hundred to several thousand euros).

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