Right of Way: A Simple Letter Is Not Enough to Prove Your Right

Imagine: you have just bought a lovely bastide in Cassis, with a sea view. To access your garage, you must cross a small part of your neighbour's land, as the previous owner did for years. One day, your neighbour puts up a barrier and forbids you passage. You show him a letter he wrote to you a few months earlier, acknowledging your right to pass. Is that enough to go to court? The Cour de cassation answers: no.

This decision of 13 October 1999 (n° 97-11.328) is a reminder to all owners who believe that a simple signed writing can create or prove a right of way (right to pass over another's land). It contrasts two articles of the Civil Code: Article 695 (which requires a title for non-apparent easements) and Article 682 (which allows passage in case of landlocking, i.e. if your land has no access to the public highway).

What is required for it to be valid? A notarial deed (authentic act), a formal recognition, or proof of landlocking. A simple letter, even precise, is not sufficient. Explanations.

The Facts: An Everyday Story

Mr. Perrin owns a plot in Cassis, in the Fontaine district. To access his land, he must cross a strip of land belonging to his neighbour, Mr. Y, for ages. But a dispute arises: Mr. Y considers that the passage encroaches on his property and blocks access. Mr. Perrin sues him to restore the passage.

During the proceedings, Mr. Perrin produces a letter that Mr. Y sent him during a previous dispute. In that letter, Mr. Y acknowledged "Mr. Perrin's passage over a width of approximately 1.70 metres". Mr. Perrin relies on it as a recognitive title (a document recognising the existence of the easement). The Court of Appeal of Aix-en-Provence rules in his favour: it orders the restoration of the passage and fixes its route on Mr. Y's plot.

But Mr. Y appeals to the Cour de cassation. His argument: this letter does not constitute a valid title because it was not drafted in the required form and merely describes a factual situation. The Cour de cassation agrees: for a written recognition to be a recognitive title, it must be express and precise, but also emanate from the person claiming to be the holder of the right (the owner of the servient tenement) in an act having legal value (notarial deed, judgment, etc.). A simple private correspondence, even detailed, is not enough.

Moreover, the Court of Appeal had not verified whether Mr. Perrin's land was landlocked (without access to the public highway). Yet, without a title or landlocking, there is no right of way. The case is referred to another Court of Appeal.

The Reasoning of the Court — Analysed

The Cour de cassation quashes the appeal judgment on the basis of Articles 695 and 682 of the Civil Code. Let us analyse these texts.

Article 695: "Continuous non-apparent easements, and discontinuous easements, whether apparent or non-apparent, may only be established by title." Translation: a right of way, which is a discontinuous easement (you do not pass continuously) and non-apparent (no visible trace like a tarmac road), can only be created by a written instrument (title). This title must be an authentic act (notarial deed) or a judgment. A simple letter between individuals does not meet this condition.

Article 682: "The owner whose land is landlocked and has no access to the public highway may claim a right of way over his neighbours' land for the exploitation of his property." If your land is landlocked (no access to the road), you are entitled to a right of way, even without a title. But you must prove it.

In this case, the Court of Appeal had relied on Mr. Y's letter as a "recognitive title" (recognition of the easement). The Cour de cassation says: no. A recognition of an easement must be made in a solemn legal act, not in a simple letter. Furthermore, the Court of Appeal did not examine whether Mr. Perrin's land was landlocked. Yet, if the land is not landlocked, the only possible title is a notarial deed. The judgment is therefore without legal basis.

The Cour de cassation does not rule on the merits: it refers the case to another Court of Appeal (Nîmes) for it to re-judge in light of these principles. This is a quashing with referral.

This reasoning confirms constant case law: tolerance or simple verbal or written authorisation does not create a real right. Only a title complying with Article 695 opens a perpetual right of way.

What This Changes for You — Concretely

If you are an owner in Aubagne, Cassis, or elsewhere, this decision directly concerns you.

For the owner who wants a right of way: You cannot rely on an old letter or a text message from your neighbour. You need a notarial deed (when buying, check the easements mentioned) or prove that your land is landlocked. Landlocking is demonstrated by a bailiff's report, a cadastral plan, and photos. If you are landlocked, you are entitled to a right of way, but you must compensate the neighbour (Article 682).

For the owner facing a claim: If your neighbour claims a right of way based on a simple writing, you can resist. Demand a valid title. However, beware: if the right of way has been exercised for more than 30 years, there may be acquisitive prescription (usucapion) – but that requires legal action.

Example in Aubagne: Mr. Dupont, owner of an 800 m² plot, has used a path on his neighbour's land for 10 years. The neighbour sells his land. The new owner blocks the passage. Mr. Dupont produces a letter from the former neighbour. The court rejects his claim: the letter is not a title. Mr. Dupont must prove landlocking: does his land have direct access to the road? No, because there is an impassable embankment. He obtains a bailiff's report (approx. €300) and gets a judicial right of way, but must pay €5,000 in damages to the neighbour for the loss of value of the servient tenement.

For the buyer: Before buying, demand the notarial deed mentioning the easements. Do not rely on a verbal promise. Have your notary check if the land is landlocked.

For the tenant: You cannot claim a right of way for yourself. Only the owner can act. Report any problem to him.

Four Tips to Avoid This Type of Dispute

• Check your title deed: Verify the active and passive easements mentioned in the notarial deed. If nothing is written, there is no easement, unless landlocked.
• In case of landlocking, make a report: Before starting proceedings, have a bailiff's report drawn up on the landlocked state (cost: €200 to €400). This constitutes solid evidence.
• Negotiate a written agreement: If your neighbour grants you a right of way, have a private deed drawn up and then register it. Better: go to a notary for a conventional easement (allow €500 to €1,500 in fees).
• In case of dispute, seize the Tribunal judiciaire: Actions relating to easements fall under the Tribunal judiciaire (formerly TGI). Do not delay: the 30-year prescription runs.

Further Reading: Related Case Law and Developments

This decision is part of a consistent line of the Cour de cassation. Already in 1993 (Civ. 3e, 10 March 1993, n° 91-14.879), it held that a simple letter does not constitute a recognitive title. More recently, in 2016 (Civ. 3e, 14 April 2016, n° 15-13.447), it reminded that the recognition of an easement must be contained in a transfer of ownership deed or an express recognitive act.

The trend is clear: judges are very strict on proof of easements. They want to avoid abuses and neighbourhood conflicts. Recent developments point towards digitalisation of deeds (electronic authentic act), but the substance remains unchanged. In the future, we can expect courts to require even more formal proof, especially in successive sales.

Checklist Before Taking Action

1. Is my land landlocked? Check access to the public highway. If there is no access (road, communal path), you are landlocked.
2. Do I have a title of easement? Look at your title deed. Search for the words "easement", "right of way", "real charge".
3. Has there been a written recognition? If so, ask a lawyer if it can constitute a title. Generally no, unless it is a notarial deed.
4. How long have I been passing? More than 30 years? You can try acquisitive prescription, but it is complex and costly.
5. Have I sent a formal notice? Before taking the matter to court, send a registered letter with acknowledgement of receipt to your neighbour to attempt an amicable solution.

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