Right of Way: Who Pays for Maintenance? The Court of Cassation Rules

Imagine: you live in a lovely villa in Mougins, with a stunning sea view. To access your garage, you must each day use a small road that crosses your neighbour's land. So far, so good. But one fine morning, a storm destroys part of the path. Your neighbour says: 'It's your right of way, it's up to you to pay for the repairs.' You reply: 'It's your land, it's your responsibility.' Who is right?

This question is asked by hundreds of property owners each year. The law of servitudes (i.e., real rights burdening one property for the benefit of another) is one of the most complex in the Civil Code. Yet it governs the daily life of thousands of co-ownerships, housing estates, and landlocked plots.

The Court of Cassation, in a ruling of 12 March 2014 (n° 12-28.152), provides a clear answer: unless the instrument creating the servitude provides otherwise, it is the owner of the dominant tenement (the one benefiting from the servitude) who must bear the cost of works necessary to use or preserve the servitude. In other words, the owner of the servient tenement (the one bearing the servitude) does not have to pay. Analysis.

The Facts: A Story That Happens Every Day

Mr and Mrs Y. are owners of a plot registered as AV 139, located in a residential area. Their neighbours, Mr and Mrs X., own a neighbouring plot, AV 138, which is landlocked (no direct access to the public road). To leave their home, the X. couple must necessarily cross the Y. couple's land. A judgment of the Tribunal de Grande Instance had recognised the existence of a right of way (a right to pass over another's land to access the public road) over plot AV 139, for the benefit of plot AV 138. The route of the servitude was fixed exclusively on the Y. couple's land.

So far, nothing unusual. But the judgment also imposed on the Y. couple (the owners of the servient tenement) the obligation to construct and maintain the works necessary for the exercise of the servitude (for example, laying a surface, installing a gate, etc.). The Y. couple contested this decision before the Court of Appeal, which dismissed their appeal. They then appealed to the Court of Cassation.

Their argument was simple: Articles 697 and 698 of the Civil Code provide that 'the owner of the tenement burdened by the servitude is not required to carry out works for the use or preservation of the servitude, unless the title provides otherwise.' However, in this case, the judgment constituting the servitude (the title) said nothing about the burden of works. It had merely established the existence of the servitude and fixed its route. Therefore, according to them, it was for the owners of the dominant tenement (the X. couple) to bear these costs.

The Reasoning of the Court — Analysed

The Court of Cassation followed the reasoning of the Y. couple. It quashed the Court of Appeal's decision, citing Articles 697 and 698 of the Civil Code. These texts are fundamental: they set out the default rule (i.e., which applies in the absence of a contrary clause) regarding the burden of works in servitudes.

Article 697 provides: 'The owner of the tenement burdened by the servitude is not required to carry out works for the use or preservation of the servitude, unless the title provides otherwise.' Article 698 supplements: 'Works necessary for the use or preservation of the servitude are at the expense of the owner of the dominant tenement, unless the title provides otherwise.'

In clear terms, the law presumes that the person benefiting from the servitude (the dominant tenement) must pay for the improvements and their maintenance. Why? Because it is that person who has an interest in the servitude being usable. The owner of the servient tenement, on the other hand, bears the servitude: they should not also have to bear its cost.

The Court of Appeal had nevertheless considered that, since the judgment imposed the route exclusively on the Y. couple's land, it was for them to carry out the works. But the Court of Cassation reminds that the title must be explicit: for the burden to be transferred to the servient tenement, the title (notarial deed, judgment, etc.) must expressly provide for it. In the absence of a clause, the legal rule applies.

This reasoning is consistent with the constant jurisprudence of the Court of Cassation. Since a ruling of 6 March 1972, the Court has consistently held that Articles 697 and 698 apply regardless of the method of establishing the servitude (conventional, judicial, by destination of the head of the family, etc.).

However, be careful: if the title specifies that the servitude is granted 'free of charge' or 'without any burden on the servient tenement', that is not enough to exclude the rule. A clear and unambiguous clause is required.

What This Means for You — Practically

If you are the owner of a dominant tenement (you benefit from a right of way, a right of view, a right of drainage, etc.): you must assume the costs of installing and maintaining the works necessary for the exercise of your right. For example, if the path crossing your neighbour's land needs to be asphalted, you must pay. If a retaining wall collapses, you must repair it. undefined, I encountered a case in Sophia-Antipolis where an owner had to replace an automatic gate: the bill came to €4,500, and it was he who had to pay it.

If you are the owner of a servient tenement (you bear a servitude on your land): you do not have to pay for the works, unless your property deed or the title of servitude provides otherwise. You can therefore refuse to contribute financially. However, be careful: you must not hinder the exercise of the servitude (for example, by deliberately letting the path deteriorate).

For a buyer: before purchasing a property burdened by a servitude or benefiting from a servitude, check the title. Ask your notary to specify who bears the maintenance costs. A lack of information can lead to costly disputes.

For a co-owner: in a co-ownership, servitudes between units are common (passage, pipes). The related charges are generally allocated according to the co-ownership regulations. But if the regulations are silent, the rule of Articles 697-698 applies.

Four Tips to Avoid This Type of Dispute

• Check your title deed: reread the notarial deed or judgment that creates the servitude. Look for a clause entitled 'burden of works' or 'maintenance'. If it exists, it determines your obligations. If it does not exist, the law says that the dominant tenement pays.
• Carry out a joint inspection: if you are neighbours and a servitude exists, take the time to draw up together a document describing the state of the path, pipes, etc. This will avoid later disputes over the cause of deterioration.
• Include an express clause in the deed: if you create a servitude (for example, during a land division), insert a clear clause on who pays for what. You are free to derogate from the legal rule. Example: 'Works necessary for the exercise of the servitude shall be borne by the servient tenement up to 50%.'
• In case of dispute, first try an amicable solution: a registered letter, mediation, can resolve the conflict without lawyer or court fees. If you are in Mougins, the Maison de la Justice et du Droit can refer you to a conciliator of justice.

Further Reading: Related Case Law and Developments

The Court of Cassation has already ruled on similar questions. For example, in a ruling of 11 July 2012 (n° 11-19.929), it held that the owner of the dominant tenement who carried out works on the servient tenement without title cannot claim reimbursement from the owner of the servient tenement, unless there was unjust enrichment. In other words, if you improve your neighbour's path without their agreement, you cannot ask them to pay.

More recently, a ruling of 16 January 2019 (n° 17-28.495) specified that the burden of works can be placed on the servient tenement if the title provides for it, even implicitly, provided that the intention of the parties is clear. Therefore, precise clauses must be drafted.

The trend of the courts is to protect the owner of the servient tenement, considered the weaker party. Indeed, bearing a servitude is already a constraint: adding costs would be excessive. This jurisprudence is stable and should continue.

What You Absolutely Must Remember

FAQ

• Who pays for the maintenance of a right of way? In the absence of a contrary clause in the title, it is the owner of the dominant tenement (the one using the path) who must pay.
• Can I refuse to pay if I am the owner of the servient tenement? Yes, if the title does not impose this burden on you. You can require the dominant tenement to bear the costs.
• What should I do if my neighbour asks for a contribution towards the costs? Check the title. If it is silent, you can refuse. If they insist, send them a registered letter with a copy of Article 698 of the Civil Code.
• Can a judgment impose payment on the servient tenement? Yes, if the judgment expressly provides for it. But the Court of Cassation overturns judgments that impose this burden without basis in the title.
• What are the time limits for taking action? The action for payment of works is subject to a 5-year limitation period (Article 2224 of the Civil Code). The action to challenge an obligation to maintain is also subject to a 5-year limitation period from the date of the request.

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In summary, before incurring costs or claiming them, take out your title deed and read the clauses relating to the servitude. If in doubt, consult a lawyer lawyer.

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