Right of way: when use becomes impossible, the right is extinguished

Imagine: you are the owner of a plot in a housing estate in Tarnos, with a right of way (the right to pass over your neighbour's land) recorded in the restrictive covenants since 1927. One day, the local council decides to build a wall that permanently blocks this passage. What can you do? Does the right of way still exist? This seemingly technical question was decided by the French Supreme Court in 1974 in a ruling whose principles remain perfectly relevant today.

But what exactly does this change? The judgment of 9 April 1974 (appeal no. 72-13.850) answers: a right of way arising from a contract (created by a contract, not by an administrative regulation) is extinguished if its use becomes permanently impossible, by application of Article 703 of the French Civil Code. In other words, if a permanent obstacle (such as a wall or building) renders the right of way unusable, it disappears. This is not obvious to everyone: many owners think their right is perpetual.

However, this extinction is not automatic. It must be declared by a judge, and the conditions are strict. In this article, I explain the judges' reasoning, the practical consequences for you, and how to avoid finding yourself in a legal dead end.

The facts: a story that happens every day

Let's go back to the case. It all starts in Bayonne, where owners of plots in a housing estate (a development of land divided into plots) benefit from a right of way under a covered arcade gallery, reserved for public pedestrian use. This right of way was established by private agreements in 1927 and 1947, recorded in the restrictive covenants of the housing estate (the document that sets out the rules of the estate).

But the city of Bayonne, owner of a plot, builds permanent structures that make the passage impossible. The owners of the neighbouring plots (the appellants) sue the city to have their right of way recognised and to obtain damages (financial compensation). The city argues that the right of way is extinguished because its use has become permanently impossible.

The Court of Appeal rules in favour of the city: it declares the right of way extinguished. The owners appeal to the Supreme Court (challenge the decision before the Court of Cassation). Their argument? The right of way is a public right of way because it is intended for use by pedestrians, and therefore subject to public law, not the Civil Code. But the Supreme Court dismisses their appeal: it confirms that the right of way is private because it derives solely from a contract, not from an administrative regulation. Therefore, the rules of the Civil Code apply, and Article 703 allows extinction if use is impossible.

What few people know is that this decision was made over 50 years ago, but it is still frequently cited in housing estate disputes. undefined, I have come across cases where owners in Biscarrosse or Tarnos believed their right of way was perpetual, when a simple boundary wall built by a neighbour could cause it to disappear.

The court's reasoning — explained

The Supreme Court, in its judgment, reasons in two stages. First, it characterises the nature of the right of way: is it public or private? Article 637 of the Civil Code defines a right of way as "a charge imposed on one piece of land (an estate) for the use and benefit of another piece of land belonging to a different owner." Article 686 specifies that rights of way can be established by contract. Here, the disputed right of way originates only from the private agreements of 1927 and 1947, with no administrative regulation. Therefore, it retains its private character, even if it is intended for public use. In short, just because pedestrians use it does not make it a public right of way (subject to administrative law).

Next, the Court applies Article 703 of the Civil Code, which provides: "Rights of way cease when the things are in such a condition that they can no longer be used." In other words, if the use of the right of way becomes permanently impossible, it is extinguished. However, the impossibility must be permanent, not temporary. Here, the construction of permanent structures (walls, buildings) by the city made the passage impossible forever. The appeal judges could therefore legitimately infer extinction.

The owners protested: "But the right of way is public; it cannot be extinguished!" The Supreme Court replied: no, it is private, so subject to ordinary law. This reasoning is a confirmation of previous case law: housing estate rights of way, even if they benefit the public, remain private if they arise from a contract. This is a fundamental distinction that may come as a surprise.

How should you react? If you are an owner, never assume that a right of way is perpetual. If a permanent obstacle is built, your right may disappear. And if you are the owner of the servient tenement (the land that bears the right of way), you can apply for a declaration of extinction if use has become impossible.

What this means for you — in practice

This decision has practical implications for several profiles.

Landlord: If you let a property with a right of way, and that right of way becomes impossible (for example, the neighbour has built a gate blocking access), you can no longer enforce it. The tenant might even claim a rent reduction if access is essential. Example: in Tarnos, a landlord rents a garage with a right of way. The city paves a path that makes the passage impassable. The tenant can request a rent reduction of 10 to 20% until the issue is resolved.

Purchaser: Before buying a plot in a housing estate, check whether the rights of way are still effective. If a passage is obstructed, it may be extinguished, and you will have no remedy. Have a joint inspection carried out (by a bailiff) before signing. In Biscarrosse, a purchaser lost €15,000 because he bought land with a right of way in theory, but the path had been blocked by a wall for ten years. The seller had not mentioned it.

Co-owner: If your co-ownership benefits from a right of way over a neighbouring plot, and the owner of that plot builds an obstacle, the right of way may be extinguished. You must act quickly: sue to have the extinction declared or, conversely, to maintain it if you believe use is still possible. Time limits: the action to declare extinction is imprescriptible (no time limit), but it is best to act quickly to avoid fait accompli situations.

If you are in this situation, you should consult a lawyer lawyer. A simple recorded delivery letter may suffice to show your opposition, but only a judgment can finally settle the matter.

Four tips to avoid this type of dispute

• Tip 1: Check the origin of the right of way. Ask for the housing estate's restrictive covenants and the deed of sale. If the right of way arises from a private contract, it is subject to the Civil Code. If it arises from an administrative regulation (such as a local development plan), it is public and cannot be extinguished by impossibility of use. Do not confuse the two!
• Tip 2: Have a bailiff record the condition of the premises. If you fear that a right of way may become impossible, have a report drawn up (cost about €150-200). This will serve as evidence if a dispute arises. In Tarnos, such a report allowed an owner to show that the passage was still possible, despite temporary obstruction.
• Tip 3: Do not build without checking rights of way. Before building a wall or building, consult the land registry and the restrictive covenants. If you obstruct a right of way without permission, you risk a claim for damages (compensation) and demolition of the structure. The cost can be high: in Biscarrosse, an owner had to pay €10,000 in damages for building a gate blocking a right of way.
• Tip 4: If in doubt, bring the matter to court quickly. If you believe a right of way is extinguished or, conversely, that it still exists, do not wait. Legal proceedings can be lengthy (6 months to 2 years), but they clarify the situation. Legal fees (about €1,500 to €3,000) are often less than the cost of an unresolved dispute.

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Further reading: related case law and developments

This 1974 decision is part of a consistent line of Supreme Court authority. As early as 8 March 1965 (Bull. civ. III, no. 179), the Court had held that housing estate rights of way, even if intended for public use, remain private if they are contractual. The 1974 decision merely confirms this approach.

More recently, the Supreme Court clarified in a judgment of 14 November 2019 (no. 18-22.124) that the impossibility of use must be absolute and permanent. Mere inconvenience is not enough. For example, if the passage is obstructed but can be cleared, the right of way subsists. What distinguishes the 1974 judgment is the permanent nature of the structures: they could not be removed without demolition.

The trend in the courts is therefore to protect plot owners by maintaining rights of way as long as minimal use is possible, but to extinguish them as soon as the obstacle is irremediable. For the future, be vigilant: if you are a plot owner, have a bailiff report the state of the premises every 5 years. And if you are the neighbour bearing the right of way, know that you can apply for extinction if you prove permanent impossibility.

Key points to remember

FAQ

1. Can a housing estate right of way be extinguished? Yes, if it arises from a contract (private restrictive covenants) and its use becomes permanently impossible (Article 703 of the Civil Code).

2. What should I do if my neighbour blocks a passage? Have the obstacle recorded by a bailiff. If the obstacle is permanent, you can ask the court to declare the right of way extinguished or, if you are the beneficiary, to order the neighbour to restore the passage under penalty.

3. Can I lose my right of way if I do not use it? No, non-use does not extinguish a right of way. Only physical impossibility of use (due to a permanent obstacle) can extinguish it. Note: extinction by non-use for 30 years (prescription) exists, but the 1974 judgment does not deal with this point.

4. What is the cost of legal proceedings? Expect between €1,500 and €5,000 in legal fees, depending on complexity. A preliminary 30-minute consultation with Maître Zakine costs €45 and can guide you on strategy.

5. Can I sell a plot if the right of way is extinguished? Yes, but you must inform the buyer of the extinction. If you do not, you may be liable for latent defects (hidden defects). It is better to have the extinction confirmed by a notarial deed.

Are you 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 →