Right of Way: Is a Mere Tolerance Sufficient to Exclude the State of Landlocking?

Imagine: you have just acquired a beautiful agricultural property in Saint-Lô, with land stretching to the departmental road. But to access it, you must cross the neighbour's path, a tolerance that has existed for thirty years and has never been challenged. Until the day that neighbour decides to block your passage. Are you landlocked? Do you have a right of way? Hundreds of landowners ask themselves this question every year, and the answer is not always what one might think.

Under French law, the state of landlocking (a situation where land has no access to the public highway) gives rise to a right of way (the right to pass over neighbouring land) under Article 682 of the Civil Code. But what happens when access is merely tolerated, without any written title? The Court of Cassation, in a decision of 16 June 1981 (No. 80-11.230), ruled: as long as the tolerance is maintained, the land is not landlocked. In other words, an owner cannot invoke landlocking to obtain a permanent right of way if he already benefits, even precariously, from sufficient access. This decision, handed down over forty years ago, remains highly relevant for owners of landlocked or allegedly landlocked land, particularly in the jurisdiction of Cherbourg, where agricultural and forestry plots are numerous.

But beware: this tolerance is not a right. It can be revoked at any time. So how can you secure your access? What should you do if your neighbour withdraws this permission? I explain everything, with concrete examples from the Manche region, so that you know exactly where you stand.

The facts: a story that happens every day

The case that gave rise to this decision involved two owners in the Cherbourg area. Mr X, a farmer in Saint-Lô, owned a plot of land that, to be cultivated, required access to the departmental road. For decades, he crossed his neighbour Mr Y's path with his tractor and agricultural machinery. This tolerance, never formalised in writing, had always worked without incident. Until a dispute arose between the two men. Mr Y then decided to block the passage, preventing Mr X from accessing his land. The latter, considering himself landlocked, took the matter to court to have his right of way over Mr Y's land recognised.

Before the Tribunal de Grande Instance of Cherbourg, and then the Court of Appeal of Caen, Mr X argued that his land was landlocked because it had no direct access to the public highway. He invoked Article 682 of the Civil Code, which provides that any owner whose land is landlocked has a right of way over neighbouring land to ensure its access. The first instance judges agreed with him: they noted the lack of direct access and ordered a right of way. But Mr Y appealed. He argued that Mr X had always benefited from a tolerated passage, and that this tolerance was sufficient to ensure the cultivation of his land. According to him, as long as this tolerance was maintained, the land was not landlocked.

The Court of Appeal of Caen followed Mr Y's reasoning. It dismissed Mr X's claim, holding that the tolerance of passage, even if precarious and revocable, prevented the state of landlocking as long as it subsisted. Mr X then appealed to the Court of Cassation. He argued that the Court of Appeal had violated Articles 682 and 683 of the Civil Code, because a tolerance is not a right and cannot preclude landlocking. But the Court of Cassation, in its decision of 16 June 1981, dismissed the appeal. It confirmed that "land is not landlocked if it benefits from a tolerance of passage allowing it free access to the public highway for the needs of its exploitation as long as this tolerance is maintained". In other words, the tolerance, although revocable, is sufficient to exclude the state of landlocking.

The reasoning of the court — analysed

To understand this decision, we must go back to the texts. Article 682 of the Civil Code (in its version applicable at the time, now modified but the principle remains the same) provides: "The owner whose land is landlocked and has no outlet onto the public highway may claim a passage over the land of his neighbours to ensure the access of his land." The state of landlocking is therefore an essential condition for obtaining a judicial right of way. But what is landlocked land? The case law has long considered that landlocking is a factual situation: land is landlocked when it has no sufficient outlet onto the public highway, either directly or by an existing easement.

In this case, the question was whether a tolerance of passage (an unwritten authorisation, revocable at any time) constitutes a "sufficient outlet" within the meaning of the law. The judges of the Court of Cassation answered in the affirmative, at least as long as this tolerance is maintained. Their reasoning is pragmatic: if the owner can, in fact, access his land for the needs of his exploitation, he is not, in fact, landlocked. It matters not whether this is by the grace of the neighbour and not by a right. What matters is the effective access.

However, note: the decision specifically states "as long as this tolerance is maintained". If the neighbour withdraws his authorisation, then the owner becomes landlocked again and can apply for a judicial passage. The tolerance is therefore only a provisional state, which does not extinguish the possible right to an easement, but suspends it. What few people know is that this solution is consistent with the discontinuous nature of the right of way (an easement which is exercised only by human action, and not by the nature of the land). Discontinuous easements cannot be acquired by prescription (prolonged possession), except in cases of landlocking. But here, the tolerance is not possession; it does not give rise to a right by prescription. In short, tolerance prevents landlocking, but it does not create a definitive right for the beneficiary either.

This reasoning is a confirmation of previous case law, not a revolution. The Court of Cassation had already ruled in the same sense on several occasions. It maintains a clear line: the assessment of landlocking is done in concreto, based on actual access, even if precarious. In my practice, I have come across cases where owners in Carentan thought they were landlocked even though they had been crossing the neighbour's field for years without any problem. They did not know that this tolerance closed the door to a legal easement. Once the passage was withdrawn, they could finally act.

What this means for you — concretely

This decision has immediate practical implications, depending on your situation.

If you own land without direct access (apparently landlocked): Do not rush to apply for a judicial right of way if you already benefit from a tolerance from your neighbour. As long as this tolerance is maintained, you will not succeed in court. You will be dismissed like Mr X. On the other hand, if your neighbour withdraws the authorisation, then you can act. My advice: formalise the tolerance in writing (a precarious passage agreement) to secure your access, even temporarily. If you want a definitive right, negotiate a conventional easement (an agreement signed before a notary) or, in case of refusal, wait for revocation before taking the matter to court.

If you own the servient land (the land that bears the passage): You have the right to revoke the tolerance at any time, but beware: if you do, your neighbour may then claim a legal easement. You will lose control over the conditions of passage (including the compensation). It is therefore better to negotiate an amicable agreement, with compensation, rather than suffer a court decision. For example, in Carentan, an owner granted a passage to his neighbour for €200 per year, formalised by a private deed. This avoided a three-year trial.

If you are a purchaser of land: Before buying, check the existence of effective access and its nature. If the access is based on a mere tolerance, know that it can be challenged overnight. Demand either an easement registered in the title deed or a promise of easement from the seller. A concrete example: in Saint-Lô, a developer bought a housing estate without checking that the access was a tolerance. The neighbour blocked the passage a year later, paralysing the project. The developer had to pay €50,000 to acquire an easement, not including legal costs.

If you are an agricultural tenant: Your right to remain in the property does not protect you if the owner of the servient land revokes the tolerance. You will then have to turn against your landlord for lack of peaceful enjoyment. Ensure that the lease explicitly mentions access.

In summary: tolerance is a sword of Damocles. It allows you to access, but without security. To transform this tolerance into a right, you need either a written agreement or a judgment after revocation.

Four tips to avoid this type of dispute

• Do not remain in ambiguity: If you benefit from a tolerance of passage, have it recorded in writing, even simply. A recorded delivery letter confirming the agreement may suffice to prove the existence of the tolerance. But better is a private deed (signed by both parties) specifying the conditions (width, times, maintenance). This does not create a real right, but secures the relationship.
• Consider a conventional easement: If your neighbour is willing to sell you a right of way, sign a notarial deed. The cost? Allow €500 to €2,000 in notary fees, plus the agreed price. This is far less than a trial (€5,000 to €15,000 on average). In Carentan, a farmer paid €3,000 for a definitive easement, settling a ten-year conflict.
• In case of revocation, act quickly: As soon as your neighbour prohibits passage, do not delay. The landlocking revives immediately. Apply to the judicial court by way of interim proceedings (urgent procedure) to obtain a provisional authorisation of passage. The judge may order an investigative measure to establish the landlocking. Then, initiate proceedings on the merits to have your right recognised. Deadlines? Approximately 6 to 12 months for an interim decision, 2 to 3 years for a judgment on the merits.
• Document everything: Take photos, note dates, keep correspondence. If the neighbour claims the tolerance never existed, you will need to prove otherwise. For example, if you have statements from former owners or neighbours, gather them. A well-prepared file saves time and money.

Further analysis: related case law and developments

This 1981 decision is part of a consistent line of the Court of Cassation. Already, in a decision of 18 May 1955 (Civ. 3e), the Court had held that the state of landlocking is assessed on the date of the claim, and that a tolerance of passage precludes landlocking. More recently, in a decision of 9 December 2015 (No. 14-21.853), the Court reaffirmed that "the owner of landlocked land may claim a passage only if his land does not benefit from any sufficient outlet onto the public highway", and that a conventional right of way, even if not registered, may suffice. The trend is therefore towards a flexible assessment of sufficient outlet, including tolerances and de facto passages.

However, note a recent development: the law of 23 November 2018 amended Article 682 of the Civil Code to specify that the access must be "sufficient" for the normal needs of the land. Judges now have a wider discretion. In some cases, a too precarious tolerance (for example, a pedestrian-only passage for agricultural land) might not be considered sufficient. But the 1981 decision remains the reference for tolerances "allowing free access for the needs of the exploitation".

In practice, expect courts to examine the reality of the access: its width, practicability, and permanence. If the tolerance is clearly temporary (e.g., permission for a construction site), it will not prevent landlocking. But if it has lasted for years and allows normal use, it will be upheld.

Checklist before acting

• Do I have direct access to the public highway? Check your title deed and the cadastre. If yes, no landlocking.
• Is my access based on a tolerance or a right? If it is a tolerance, know that it is revocable. If it is an easement (mentioned in the deed), you are protected.
• Has the neighbour already threatened to withdraw access? If so, anticipate: negotiate an easement or prepare your legal action.
• What are my actual needs? A pedestrian passage is not sufficient for agricultural land. Landlocking is assessed according to the purpose of the land.
• Do I have evidence of the tolerance? Gather documents, photos, testimonies. Without proof, you risk losing.

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