Right of Way: Impossibility of Exercising the Right Extinguishes the Easement Only After 30 Years

Imagine: you own a house in Audincourt, in the Doubs region. To access your garage, you have always used a path that crosses your neighbour's land. One day, your neighbour erects a fence or stores materials, making passage impossible. You think: 'My right of way has existed for decades, it cannot just disappear.' Yet your neighbour claims that since you can no longer pass, the easement (the right of way attached to your land) is extinguished. Who is right?

The French Supreme Court answered this question in a judgment of 10 October 1984 (no. 83-14.443), which is still relevant today. It ruled: the impossibility of exercising an easement only leads to its extinction if it has lasted for thirty years. In other words, a temporary obstacle, even if it lasts a few years, is not enough to extinguish the right. But caution: the owner of the dominant tenement (the one who benefits from the easement) must act before the thirty-year period expires.

In this article, I will tell you the story behind this decision, explain the judges' reasoning in simple terms, and above all give you practical advice to protect your rights, whether you are an owner, tenant or property professional. Because, as I often see in my practice in Besançon and throughout France, easement disputes are common and can quickly escalate.

The Facts: A Story That Happens Every Day

The case involves two owners in a region I know well, the Doubs. Mr X, owner of a plot in Audincourt, has benefited for decades from a right of way over his neighbour Mr Y's land to access the public road. This path, which crosses part of Mr Y's land, is the only access to Mr X's property. One day, Mr Y decides to place an obstacle there – a locked gate, or perhaps a pile of rubble – and prohibits all passage.

Mr X can no longer access his garage or garden. He takes the matter to court to have the existence of the easement declared and to obtain restoration of the passage. Mr Y counters by arguing that the impossibility of exercising the easement, even due to a factual obstacle (like a fence), automatically extinguishes the right. He invokes the principle that an easement ceases if it can no longer be used.

The first instance court, then the Besançon Court of Appeal, ruled in favour of Mr X: the easement still exists. Mr Y appeals to the Supreme Court. In its judgment of 10 October 1984, the Supreme Court dismisses his appeal and confirms the solution. But it goes further: it specifies that the impossibility of exercising an easement only leads to its extinction if it has lasted for thirty years. In this case, the obstacle was recent, so the easement was not extinguished.

What is interesting is that Mr Y's argument was twofold: first, the impossibility of exercising the easement due to a factual obstacle extinguishes it; second, confusion (the two tenements coming into the same hands) would also have extinguished the easement. But the Court did not accept these arguments. It applied the rule of Article 707 of the Civil Code (old), according to which an easement is extinguished by non-use for thirty years. However, impossibility of exercise is not voluntary non-use: it is a factual situation that must last thirty years to constitute extinction.

The Court's Reasoning — Explained

The Supreme Court relies on Article 707 of the Civil Code (now Article 706 after the property law reform of 2021). This text provides: 'An easement is extinguished by non-use for thirty years.' In other words, if the owner of the dominant tenement (the one with the right of way) does not use the easement for thirty years, he loses the right. But the 1984 judgment specifies an essential point: the impossibility of exercising the easement, for example due to an obstacle placed by the owner of the servient tenement, is not 'non-use' within the meaning of the law. It is a forced situation, which cannot be held against the beneficiary.

In short: if your neighbour blocks your passage, you cannot be penalised for not using your right. The thirty-year period only begins to run if you voluntarily give up passing, or if the obstacle lasts long enough (thirty years) for the easement to be considered definitively abandoned. It is not the obstacle itself that extinguishes the easement, but the fact that the beneficiary has done nothing to enforce it for thirty years.

In this case, the Supreme Court therefore dismisses Mr Y's appeal. It validates the reasoning of the Besançon Court of Appeal, which had found that the impossibility of exercising the easement was recent (only a few years) and that Mr X had acted quickly in court. Furthermore, the Court rejects the argument of confusion: the fact that Mr Y acquired part of the dominant tenement does not extinguish the easement if the two tenements are not entirely reunited in the same hands.

What few people know is that this decision is a strict application of the principle of extinction by thirty-year non-use. It confirms consistent case law: an easement is a real right (a right over another's property) that is not easily extinguished. It only disappears through prolonged non-use, confusion (reunion of both tenements in the same owner), destruction of the servient tenement, or express renunciation by the beneficiary. Factual impossibility is not an automatic cause of extinction.

What This Means for You — Practical Implications

If you are the owner of a dominant tenement (you benefit from an easement of way, view, drainage, etc.), this decision protects you. You can rest assured: a temporary obstacle placed by your neighbour will not make you lose your right. But be careful: you must act! If you let thirty years pass without doing anything, you will lose your easement. So, as soon as you notice an obstacle, send a registered letter to your neighbour, have a bailiff draw up a report, and if necessary, take the matter to court. undefined, I have seen cases where owners in Baume-les-Dames waited too long: they lost their right of way because the obstacle had lasted more than thirty years and they had never acted.

If you are the owner of the servient tenement (your land bears the easement), this decision is less favourable. You cannot get rid of the easement simply by blocking the passage. To extinguish it, you would need the beneficiary not to use his right for thirty years, or you would need to obtain a written renunciation from him. In practice, if you want to regain full ownership of your land, you must either negotiate an agreement (sometimes for compensation) or wait thirty years of non-use, which is long and risky (the beneficiary can act at any time).

For buyers, this is a crucial point. If you buy land burdened by an easement, check whether it has been used recently. A title deed mentioning a right of way, but where the passage has not been used for more than thirty years, could mean the easement is extinguished. Ask the seller for a statement or a bailiff's report. In Baume-les-Dames, I advised a client who had bought a plot without checking: the previous owner had let the easement lapse, and the new neighbour refused any passage. Result: a long and costly legal proceeding.

For tenants, note that the easement is a right that runs with the land, not the person. If you rent a house with a right of way, you can use it. But if the owner of the servient tenement blocks you, it is the owner (landlord) who must act, not you. Inform him promptly.

Four Tips to Avoid This Type of Dispute

• Have the condition of the property recorded at the time of acquisition. Before buying a property, ask the seller to provide you with all the deeds of easement and, if possible, have a bailiff's report drawn up proving that the passage is used. This will save you from discovering later that the easement is disputed.
• Use your easement regularly. Pass at least once a year on the path, even if you do not need to. A simple foot passage is enough to interrupt the thirty-year period. If you let thirty years go by without use, you lose your right.
• In case of an obstacle, act quickly. As soon as your neighbour blocks the passage, send him a registered letter with acknowledgement of receipt asking him to restore the situation. If nothing changes, take the matter to court within months. Do not let it drag on.
• Document everything. Keep photos, witness statements, letters. If the dispute goes to court, you will need evidence that you used the easement or tried to enforce it.

Further Reading: Related Case Law and Developments

The 1984 decision is part of a consistent line of Supreme Court rulings. Already in a judgment of 5 July 1965 (no. 63-13.918), the Court had held that 'the impossibility of exercising an easement cannot, by itself, cause its extinction; this impossibility must have lasted thirty years'. More recently, the Court confirmed this position in a judgment of 12 May 2010 (no. 09-11.561): 'the easement is only extinguished by non-use for thirty years, and the impossibility of exercising the easement, even resulting from a factual obstacle, is not an autonomous cause of extinction.'

The trend is therefore clear: the courts protect established easements. They do not want temporary obstacles or manoeuvres by the owner of the servient tenement to destroy an acquired right. This means that, to have an easement extinguished, you need either thirty years of voluntary non-use, an express renunciation, or confusion. Factual impossibility is only a starting point for calculating the period.

For the future, the property law reform of 2021 (Ordinance no. 2021-1192 of 15 September 2021) transferred Article 707 to Article 706 of the Civil Code, without changing the substance. The rule remains the same. However, the courts are increasingly attentive to proof of non-use: they require precise evidence. If you want to have an easement declared extinguished, you must prove that the beneficiary has not passed over the land for thirty years, which is often difficult to prove.

Key Points to Remember

Q: My neighbour has blocked the passage, is my easement extinguished?
A: No, not immediately. Extinction only occurs if the impossibility lasts thirty years. You must take legal action to have it restored.

Q: How can I prove that I have used my easement for less than thirty years?
A: By any means: photos, witness statements, invoices for work on the path, bailiff's reports. If you have a deed of easement, it proves its existence, but not its recent use.

Q: Can I negotiate with my neighbour to remove the easement?
A: Yes, you can sign a deed of renunciation of the easement, preferably before a notary. In return, the owner of the servient tenement may pay you compensation.

Q: What is the time limit for taking legal action if my passage is blocked?
A: Theoretically, you have thirty years from the obstacle. But it is prudent to act within months, to prevent the situation from becoming entrenched and to facilitate proof.

Q: What if I buy land and the easement has not been used for more than thirty years?
A: You can ask the seller to regularise the situation before the sale. If the easement is extinguished, you can acquire the land free of the charge. But be careful: if the seller conceals the existence of an easement, he incurs liability.

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