Right of Way Easement: the Cour de cassation clarifies the limits of possessory protection

Imagine: you own a house in Mougins, a nice building with a garden that opens onto a small local road. For years you have used this road to access your garage. But one day, your neighbour, the new owner of the adjoining plot, decides to fence off his land and block this passage, claiming that there is no official easement. You are stuck, your car can no longer get in. What can you do? This situation, more common than you might think, often pits the right of ownership against the needs of use. The question that every property owner then asks is: can I require my neighbour to restore the passage, even without a written title?

The Cour de cassation, in a judgment of 16 July 1998 (no. 96-17.357), provides a nuanced answer. It recalls that possessory protection (legal action to protect peaceful possession) of a discontinuous right of way easement (an easement that is not exercised continuously, such as a foot or vehicle passage) requires a clear title. But it adds an exception: if the plot is landlocked (without sufficient access to the public highway), the court may order the restoration of passage, even without a title, based on the state of landlocking. In short, this decision offers a lifeline to blocked property owners, but subject to strict conditions.

In this article, I will break down this decision for you, property owners, tenants or real estate professionals, with concrete examples drawn from my practice in the jurisdictions of Grasse and the Landes. You will know exactly how to react if you are faced with a neighbourly dispute concerning a passage.

The facts: a story that happens every day

The case begins with a conflict between two families in the south of France. The Y. spouses own several plots, notably plots 2230 and 2223. To access their land, they have always used a passage located on a neighbouring plot belonging to Mrs Ane (plots 2222). This passage allows them to circulate their agricultural machinery and access their farm. But one day, the owners of plot 2222 decide to block this passage, without clear explanation. A legal tug-of-war ensues.

The Y. spouses bring proceedings before the tribunal d'instance to obtain the restoration of the passage. They invoke possessory protection: they possessed this passage peacefully, continuously and unequivocally (without challenge) for more than one year. But Mrs Ane resists, arguing that there is no right of way easement registered in their title deed, and that the passage is therefore not due.

The court of appeal rules in favour of the Y. spouses, based on two elements: on the one hand, the existence of a title of easement (an ancient notarial deed) which it verified, and on the other hand, the finding that the Y. spouses' plot is landlocked: the other accesses are impassable in winter and insufficient for the passage of agricultural machinery. The court therefore orders the restoration of the passage. Mrs Ane appeals to the Cour de cassation, arguing that the court of appeal confused the possessory action (which protects possession without examining the right of ownership) and the petitory action (which determines the right of ownership). According to them, by verifying the existence of a title, the court would have ruled on the substance of the right, which is prohibited in a possessory action.

The Cour de cassation dismisses the appeal. It holds that the court of appeal did not make any order of a petitory nature (it did not say who owned the easement), but merely verified the existence and scope of the title to determine whether the possession was based on an apparent right. Then, it found the state of landlocking to justify the restoration of the passage. In other words, the Cour de cassation validates the combination of grounds: title and landlocking, without falling into the petitory.

The reasoning of the court — analysed

To understand this decision, two key concepts must be distinguished: the possessory action and the petitory action. The possessory action (Article 2278 of the Civil Code) allows a person who possesses a property to apply to court for restoration of possession if it has been disturbed, without having to prove that they are the owner. The petitory action, on the other hand, aims to establish a right of ownership or an easement. In principle, these two actions cannot be combined: one cannot, in a possessory action, discuss the substance of the right.

However, in this case, the court of appeal examined the title of easement. But the Cour de cassation explains that it did not do so to determine the right of ownership, but merely to verify whether the invoked possession could benefit from possessory protection. For a discontinuous right of way easement, indeed, possession can only be protected if it is based on a title (notarial deed, will, etc.) or on thirty-year possession (acquisitive prescription). The court of appeal therefore did what it had to do: verify the existence of an apparent title.

Next, the court of appeal found that the Y. spouses' plot was landlocked. Landlocking is a factual situation: a piece of land that does not have sufficient access to the public highway. The Civil Code (Article 682) provides that the landlocked owner may require a passage over neighbouring land, subject to compensation. Here, the court of appeal used this ground to order the restoration of the passage, without having to rule on the existence of a conventional easement. In short, even without a title, landlocking justifies the passage.

What few people know is that the Cour de cassation thus validated a two-step reasoning: first, verification of the title for the possessory action (without falling into the petitory), second, the finding of landlocking as a subsidiary ground. This solution is ingenious: it allows the court to protect the possessor without encroaching on the ownership debate, while offering a pragmatic solution to the access problem.

undefined, I have come across cases where owners in Le Cannet were blocked by a neighbour who had walled up the access. The 1998 case law is often invoked to obtain the restoration of passage, provided that landlocking is proved and, if possible, a title. But beware: the landlocking must be real and not created by the owner himself (for example, if he sold the land that gave access to the road).

What this changes for you — concretely

This decision has important practical implications for several profiles.

For the owner who uses a passage: If you are in this situation, you must act quickly. The possessory action must be brought within one year of the disturbance (Article 2279 of the Civil Code). You can apply to the judge in summary proceedings (emergency procedure) for restoration of the passage. If you have a title of easement, that is an advantage. If not, you can invoke the state of landlocking: have a bailiff confirm that your land has no other sufficient access. For example, in Mougins, agricultural land whose access is blocked by a wall can benefit from this protection.

For the owner who receives a claim: If your neighbour asks you to restore a passage, first check whether a title of easement exists. If so, you must respect it. If not, you can challenge the possessory action by proving that the passage is not based on a title and that the land is not landlocked. For example, if your neighbour himself created the landlocking by selling the land that gave access to the road, he cannot rely on landlocking.

For the real estate professional (agent, notary, developer): This decision reminds us of the importance of verifying easements and accesses during a transaction. In Le Cannet, a developer buying land must ensure that access is secured, either by a recorded easement or by a landlocked situation that can be regularised after acquisition. Otherwise, disputes may arise and block the project.

In figures: a possessory action costs on average €1,500 to €3,000 in lawyer's fees, plus bailiff's costs (about €200). But if the passage is restored quickly, you save much more (example: a garage unusable for a year is a loss of rental value of €1,200 per month).

Four tips to avoid this type of dispute

• Have the condition of the premises recorded by a bailiff as soon as the disturbance occurs. A bailiff's report is strong evidence for a possessory action. It allows the disturbance to be dated and the situation to be described before it changes.
• Check your title deeds. Before buying a property, consult the land registry and the notarial deed to see if there is a right of way easement. If the seller uses a passage, ask him to show you the title. If not, ask the neighbour.
• Do not wait to act. The possessory action is time-barred within one year from the disturbance. After this period, you lose the possibility of seeking restoration by this route. You will then have to bring a petitory action, which is longer and more expensive.
• In case of blockage, prefer amicable negotiation. A registered letter with formal notice may suffice. If the neighbour does not react, mediation can avoid a trial. But if the disturbance persists, do not hesitate to consult a lawyer specialising in property law.

Further reading: related case law and developments

The Cour de cassation has rendered several judgments on the same subject. For example, in a judgment of 10 November 1999 (no. 97-21.285), it recalled that the possessory action is not available for a discontinuous easement without a title, but that the state of landlocking can be invoked independently. More recently, in a judgment of 4 July 2019 (no. 18-18.227), the Court specified that the landlocked owner is entitled to a sufficient passage for the normal use of his land, even if this imposes an easement over several neighbouring properties.

The trend of the courts is therefore to protect the landlocked owner, while requiring a title for possessory protection of discontinuous easements. This case law has been stable since 1998. For the future, it can be expected that judges will be increasingly attentive to the proof of landlocking, particularly in peri-urban areas like Mougins or Le Cannet, where land divisions are frequent.

Checklist before acting

• Do I have a title of easement? Check in your title deed or ask the notary. If yes, you can act in possessory.
• Is my land landlocked? Check whether there is another practicable access. Landlocking must be real: a muddy path in winter may be considered insufficient.
• When did the disturbance occur? Note the exact date. The possessory action must be brought within one year.
• Do I have evidence? Photos, bailiff's report, witness statements. The more you have, the stronger your case.
• Have I consulted a lawyer? Do not try to take the law into your own hands. A lawyer lawyer will advise you on the best strategy (possessory or petitory, summary or full trial).

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