Right of Way for Landlocked Property: The Judge May Verify the Landlocked Status Without Violating the Non-Cumul Rule

Imagine the scene: you have just bought a nice country house in Aubigny-sur-Nère, in the Cher department. Everything seemed perfect until the day your neighbour, Mr Dupont, decides to block the path you have always used to access your garage. "This path is on my property, you have no right of way," he tells you. You are in shock. How is this possible? You are the owner, but your land has no other access to the road. In legal terms, you are what is called a landlocked owner.

This situation is one I encounter regularly in my practice. It raises a crucial question: what can you do when your access is threatened? You can bring a court action, but beware: the law distinguishes between two types of actions. One, the complainte (possessory action), aims to protect your possession (the fact of using the passage). The other, the petitory action, aims to have your right of ownership or easement recognised. The basic rule is that you cannot cumulate the two: if you have chosen the complainte, you cannot at the same time dispute the right of ownership. But then, how can you assert that you are landlocked if the judge cannot verify the landlocked state?

This is precisely what the Cour de cassation clarified in a judgment of 27 June 1972 (appeal no. 71-10.820). It held that the judge hearing a complainte based on a right of way for which the landlocked state constitutes the legal basis may, without contravening the prohibition on cumulation with the petitory action, verify the fact of the landlocked state itself. In other words, the judge can ascertain that your land is landlocked to determine whether you are entitled to the right of way, without having to definitively decide the issue of ownership. A decision with major consequences for landowners.

The facts: a story that happens every day

The case began in a small commune in the Cher, not far from Vierzon. Mr X owns a piece of land (a plot) which, to access the public road, must cross the property of his neighbours, Mr and Mrs Y. For years, he used this passage without any problem. But one day, the neighbours refused him access, claiming that the passage encroached on their land. Mr X, believing he had a right of way due to the landlocked state of his land, brought a complainte (a possessory action) before the court.

The court, and then the court of appeal, dismissed his claim. Why? Because they considered that Mr X's land was not landlocked. And for good reason: the judges found that the landlocked state was due to his own act. In 1966 and 1967, Mr X had carried out works on his land (repairs or constructions) that had the effect of removing the pre-existing access. In short, he had landlocked himself. However, under Article 682 of the Civil Code, the owner whose land is landlocked is entitled to a right of way, but only on condition that the landlocked state is not due to his own act.

Mr X appealed to the Cour de cassation. He argued that the court of appeal, in denying the existence of the landlocked state, had examined his neighbours' title deed and the nature of his works, which would amount to deciding a substantive issue (the right of ownership) in the context of a possessory action. According to him, the judge in a complainte cannot verify the landlocked state, as this touches on the petitory action.

The reasoning of the court — dissected

The Cour de cassation dismissed Mr X's appeal. It approved the court of appeal's verification of the landlocked state. Its reasoning is as follows: when the right of way invoked in a complainte has its legal basis in the landlocked state (Article 682 of the Civil Code), the judge may, without violating the rule against cumulating possessory and petitory actions, verify whether the land is indeed landlocked. Why? Because the landlocked state is a legal fact, not a right. Ascertaining it does not amount to deciding the right of ownership, but merely establishing a factual situation.

The Court further stated that the judge may even find that the landlocked state is due to the claimant's own act, as in this case (the works of 1966-1967). In such a case, he may dismiss the complainte. However, note: the judge should not engage in a detailed analysis of title deeds to determine the exact extent of the easement. He limits himself to a finding of the landlocked state.

This decision confirms previous case law but provides a welcome clarification. Before this judgment, some judges hesitated to verify the landlocked state in a complainte, fearing to encroach on the petitory action. The Cour de cassation removes this ambiguity.

What this means for you — practically

Concretely, if you own a landlocked plot in Aubigny-sur-Nère and your neighbour blocks your access, you can act quickly by way of a complainte (possessory action) without having to bring a substantive action (petitory action), which is longer and more costly. The judge may, within the framework of this complainte, verify that your land is indeed landlocked. If so, he will order the restoration of the passage under a penalty payment (e.g., €100 per day of delay).

But beware: if the landlocked state is due to your own act (e.g., you built a wall blocking access), the judge will dismiss your claim, as in the 1972 case. I have seen this in my practice: an owner in Vierzon had demolished a shed and found himself without access. He lost his case because the landlocked state was of his own making.

For tenants: you can also act, but only if you have been in peaceful possession of the passage (using it for at least one year). For buyers, check before purchasing whether the property has direct access to the public road. If not, ensure that a right of way is registered in the land registry or in the deed of sale.

Four tips to avoid this type of dispute

• Do not carry out works that may remove your access: before building a wall, fence or building, check that your land retains access to the public road. If you remove the access, you create a landlocked state by your own act, and you lose any right to claim a passage.
• Have the landlocked state recorded by a bailiff: if you are already landlocked, have a report drawn up by a commissaire de justice (formerly huissier). This report will be solid evidence before the judge.
• Negotiate a friendly easement: rather than going to court, offer your neighbour compensation in exchange for a right of way. The compensation should be proportionate to the harm suffered (e.g., €500 per linear metre of passage). A written agreement, signed before a notary, will save you years of litigation.
• Check your title deed: read the notarial deed carefully. A right of way is often mentioned there. If it does not appear, you can ask the notary to check the cadastral archives.

Further reading: related case law and developments

The 1972 decision is part of a consistent line of case law from the Cour de cassation. For instance, a judgment of 8 July 1969 (no. 68-10.123) had already held that the judge in a possessory action could verify the landlocked state. The Court reaffirmed this principle in a judgment of 16 January 2008 (no. 06-21.515), specifying that the judge may even order an expert report to determine whether the land is landlocked, without violating the non-cumul rule.

The trend is therefore towards increased flexibility: the possessory judge may examine factual questions that touch on the law, as long as they are necessary to rule on possession. This means that landlocked owners have a faster and less costly remedy than the petitory action.

Frequently asked questions

What is a complainte in property law?
A complainte is a court action brought by a person who is disturbed in their possession (e.g., prevented from using a path they had been using). It aims to stop the disturbance and restore the previous possession.

Can I bring a complainte if I am a tenant?
Yes, provided you can show peaceful and continuous possession for at least one year before the disturbance. The tenant may act against the landlord or against a third party.

What are the time limits for acting?
The possessory action must be brought within one year of the disturbance. After this period, you lose the possibility of acting by complainte and must bring a substantive action (petitory action), which can last several years.

What is the cost of a complainte?
Lawyer's fees vary between €1,500 and €3,000 for first instance proceedings, depending on complexity. If you win, the legal costs may be borne by the opposing party.

What if my neighbour disputes the landlocked state?
The judge will decide after examining the evidence (reports, photos, witness statements, expert opinions). He may also order an investigative measure (expert report) to verify the landlocked state.

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