Right of way: when an expert report does not limit the judicial debate

Imagine: you are the owner of a house in Yvetot, and your neighbour, to access his land, must pass through yours. One day, he decides to alter the route of this right of way without your consent. You take him to court. The court orders an expert report to determine the shortest and least damaging route. The expert submits his report, but during the trial, your neighbour raises new arguments: he contests the very existence of the right of way. Can the judge disregard them on the grounds that the expert report had already settled this question? No, answers the Court of Cassation in a judgment of 1 October 2008 (No. 07-17.051). This decision, which concerns a case involving a right of way in Bordeaux, has general scope: it reminds us of a fundamental principle of civil procedure. This article explains why this distinction between what the judge says in his reasons and what he decides in the operative part is crucial for your rights.

You may wonder: 'If an expert report was ordered, does that mean the judge has already accepted the principle of the right of way?' Not at all. The Court of Cassation has ruled: a decision that simply orders an expert report does not create res judicata (i.e., a definitive and incontestable character) on the substantive issue. In other words: the framework set by the judge for the expert is not a limitation for the rest of the proceedings. Each party is free to contest all aspects of the dispute, even those that seemed already settled by the expert report order. This rule, derived from Article 480 of the Code of Civil Procedure (which states that res judicata only applies to what is decided in the operative part), protects your right to a full debate.

So, what should you remember for your situation in Rouen or elsewhere? Before starting proceedings, never consider that a simple expert report has exhausted the dispute. On the contrary, prepare to defend the entirety of your case before the judge. Below, we break down the case, the practical implications, and give you concrete advice to avoid pitfalls.

The facts: a story like many others

Mr. X, owner of a landlocked plot in Yvetot, benefits from a right of way (right to pass over the neighbouring land to access the public highway) over his neighbour Mr. Y's property. One day, Mr. Y decides to alter the route, causing a dispute. Mr. X sues Mr. Y before the tribunal de grande instance of Bordeaux (the predecessor of the tribunal judiciaire) to have his right recognised and to obtain compensation for the damage suffered (for example, additional fitting-out costs). During the proceedings, the Court of Appeal of Bordeaux, by a judgment of 26 April 2004, orders an expert report. The expert's brief is clearly defined: determine the shortest and least damaging route for the servient tenement (Mr. Y's land), and fix the compensation due. The expert submits his report in 2005.

But the parties do not stop there. Mr. Y, dissatisfied, contests before the Court of Appeal not only the amount of compensation, but also the very existence of the right of way. He argues that the historical route was never formalised. Mr. X, for his part, argues that the question of the existence of the right of way had already been settled by the judgment ordering the expert report. The Court of Appeal of Bordeaux, in a judgment of 30 April 2007, rules in favour of Mr. X: it considers that the 2004 judgment has res judicata on the principle of the right of way, and that it can no longer be challenged. Mr. Y then appeals to the Court of Cassation.

The Court of Cassation quashes the appeal judgment. It reminds us that res judicata attaches only to the operative part of the judgment (the part that begins with 'For these reasons, the court...' and contains the concrete decisions). In the 2004 judgment, the operative part merely ordered an expert report: it did not say 'there is a right of way'. Consequently, Mr. Y was entitled to contest the very existence of the right of way after the expert report. The Court refers the case back to the Court of Appeal of Bordeaux, but composed differently.

The reasoning of the court — broken down

The legal basis of this decision is Article 480 of the Code of Civil Procedure, which provides: 'The judgment which decides in its operative part all or part of the principal claim, or which rules on a procedural objection, a plea of inadmissibility or any other incidental matter, has, as soon as it is pronounced, the authority of res judicata with regard to the issue it decides.' In other words, only the express decisions of the judge (those written in the operative part) become final and can no longer be challenged between the same parties. The reasons (the 'because' parts of the judgment) do not have this force.

Applied to our case: the 2004 judgment ordered an expert report. Its operative part contained no affirmation about the existence of the right of way. It simply said: 'Before ruling on the merits, order an expert report to determine...' This is a decision before judgment on the merits (i.e., a measure of instruction, not a judgment on the merits). Therefore, nothing prevented Mr. Y from contesting the principle of the right of way at the subsequent hearing. The Court of Appeal had therefore erred in considering that this question was already settled.

The Court of Cassation goes further: it specifies that the fact that the expert report judgment 'restricts the legal framework of the expert's brief' does not have the effect of limiting the debates after the expert report. In other words, even if the judge said to the expert: 'You must determine the shortest route, but on the basis that a right of way exists', this does not bind the parties or the judge on the merits. Each party is free to discuss the existence of the right of way after the report is filed.

This solution is logical: an expert report is a measure of instruction aimed at informing the judge. It does not prejudge the final decision. If one considered that the expert report order freezes the debate, this would undermine the adversarial principle (the right of each party to discuss all elements of the dispute). The Court of Cassation thus confirms consistent case law: res judicata is strictly limited to the operative part.

What this changes for you — concretely

For the landlord: you have a tenant who encroaches on your land? If the judge orders an expert report to assess the encroachment, this does not mean that the principle of encroachment is established. You will have to prove the encroachment by all means at trial. Do not rely on the expert report order to win on the principle.

For the tenant: you are being sued for nuisance (noise, disturbances) and an acoustic expert report is ordered. The expert report will measure the sound level, but the judge has not yet said that the nuisance is established. You can contest the very existence of a nuisance (for example, by showing that the noise is normal for the neighbourhood).

For the buyer: you buy a house in Rouen and discover a right of way not mentioned in the deed. You sue the seller for latent defect (hidden defect rendering the property unfit for use). The judge orders an expert report to determine the impact of the right of way. This does not mean that the defect is recognised. You will have to prove that the right of way was hidden and that it renders the property unfit (for example, impossibility of accessing the garage).

Concrete example: imagine you are an owner in Rouen, and your neighbour uses a right of passage without right. You sue him. The court orders an expert report to assess the inconvenience (cost of the expert: €2,000). After the expert report, the neighbour contests the existence of any right of passage. You cannot say: 'But the judge already recognised my right by ordering the expert report!' You must prove the absence of title (notarial deed, 30-year prescription). If you win, you will obtain damages (for example, €5,000 for loss of enjoyment). But if you lose, you will have to pay the expert report costs and legal costs.

If you are in this situation, you must: 1) keep all evidence of your right (deeds, photos, witness statements); 2) not neglect the expert report phase: the expert may give an opinion on the merits, but this does not bind the judge; 3) prepare your arguments on all aspects of the dispute, even those that seem already settled.

Four tips to avoid this type of dispute

• Have the boundaries of your property surveyed by a chartered surveyor before any construction or alteration project. An amicable boundary determination (agreement between neighbours) or judicial (if disagreement) avoids later disputes over the area of a right of way. Cost: approximately €1,500 for an amicable boundary determination.
• Draft a written right of way agreement if you grant a right of passage to a neighbour. Specify the route, width, times, maintenance. Have it registered with a notary so that it is enforceable against future buyers. A standard template costs around €200 from a notary.
• Never tolerate an untitled right of passage for more than 30 years, otherwise you risk acquiring a right of way by prescription (adverse possession). If a neighbour passes through your land without right, have them sign a revocable licence, or take legal action promptly.
• Keep all documents relating to your property: deeds of sale, plans, old photos, correspondence with neighbours. In case of dispute, these elements will be crucial to prove the existence or absence of a right of way.

Further reading: related case law and developments

The Court of Cassation has applied the same principle in other contexts. For example, in a judgment of 27 May 2008 (No. 07-16.789), it held that an interim order granting an expert report does not prejudge liability. Similarly, in a judgment of 13 January 2010 (No. 08-21.220), it recalled that res judicata only attaches to the operative part, not to the reasons. The trend is therefore consistent: lower courts must not extend res judicata beyond what has been expressly decided.

This case law is reassuring for litigants: it guarantees that each phase of the proceedings retains its own function. The expert report informs the judge, but the judge remains free to decide. For the future, we can expect the Court of Cassation to maintain this line, as it is consistent with the principle of separation of judicial powers (the judge of the expert report is not the judge of the merits).

In practice: what to do

Checklist: What to do if an expert report is ordered in your dispute

1. Read the operative part of the expert report order carefully: it only decides on the measure of instruction. Do not consider that the judge has already taken a position on the merits.
2. Participate actively in the expert report: provide all useful documents, ask questions to the expert, make your observations. The expert may note your statements, but this does not bind the judge.
3. Prepare your file for the hearing on the merits: even if the expert report is favourable to you, you must prove the merits of your claim (for example, the existence of the right of way). Gather deeds, plans, witness statements.
4. Anticipate the opposing party's arguments: your opponent may contest points you thought were settled. Be ready to respond on all aspects, including those that seemed settled by the expert report.
5. Consult a specialist lawyer in property law before the expert report. They will help you frame your requests and avoid procedural pitfalls.

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 →