Right of Way Easement: When a Simple Passage Prevents Extinction for Non-Use

Picture the scene: in Grasse, in the residential area of Les Jasmins, Ms D., owner of a villa with a sea view, receives a letter from her neighbour, Mr P., informing her that the right of way easement allowing access to her garage is now extinguished. The reason? She allegedly has not used it for over thirty years. Yet she uses this path every week to take out her car. This seemingly trivial conflict raises a crucial question for any property owner: what constitutes an "act of exercise" of a right of way easement? And above all, how do you prove that you have exercised it?

The Court of Cassation, in a judgment of 15 January 2026 (No. 24-14.618), has now provided a clear answer. The judges on the Quai de l'Horloge recall that only material acts of passage – that is, physically crossing the land – characterise use of the easement and prevent its extinction for non-use for thirty years. In other words, a simple passage, even if irregular, suffices to maintain the right.

This decision is of considerable practical importance, particularly in regions like the Côte d'Azur where properties are often landlocked and depend on easements for access. It secures the rights of owners who use their passage discreetly or seasonally. But caution: you must still be able to prove these material acts. So, how should you react?

The Facts: A Story That Happens Every Day

Mr X, owner of a plot in Grasse, has benefited since 1961 from a right of way easement created by notarial deed to access his property from the public highway. In 2021, his neighbour, Mr Y, owner of the servient tenement (the land burdened by the easement), informs him that the easement is extinguished due to non-use for over thirty years. Mr X contests this and brings the matter before the Grasse judicial court.

Before the judges, Mr X produces witness statements, photographs, and a bailiff's report showing that he regularly uses the passage. But the court, and then the Aix-en-Provence Court of Appeal, consider that these elements are insufficient: in their view, the acts of exercise must be "sufficiently characterised" and "recent". Mr X is unsuccessful. He appeals to the Court of Cassation.

The Court of Cassation quashes the appeal judgment. It recalls that, under Article 706 of the Civil Code (which provides for extinction by non-use for thirty years), and Article 707 (which sets the starting point at the last act of exercise for discontinuous easements such as the right of way), material acts of passage, even if infrequent, are sufficient to prevent extinction. The Court of Appeal had added a condition that the law does not provide for. The case is remitted to another court of appeal.

The Reasoning of the Court – Analysed

The Court of Cassation relies on two fundamental texts. Article 706 of the Civil Code provides: "An easement is extinguished by non-use for thirty years." And Article 707 specifies: "The thirty-year period begins to run, in the case of discontinuous easements, from the last act of exercise of that easement." A discontinuous easement is one that requires a human act to be exercised, such as a right of way. In contrast, a continuous easement (such as a view) is exercised without human intervention.

The question was therefore: what is an "act of exercise"? For the Court of Appeal, regular use, proved by recent and unequivocal acts, was required. But the Court of Cassation, in consistent case law (see notably 3rd Civ., 11 January 2006, appeal No. 04-16.400), affirms that any material act of passage – even a single one, if proved – constitutes an act of exercise. The important thing is that this act manifests the owner's intention to use his right. It does not matter whether it is occasional or old, as long as it dates from less than thirty years ago.

In other words, the Court refuses to impose a condition of "frequency" or "regularity" that the legislature did not provide for. In doing so, it protects owners who only use their easement seasonally (second home) or sporadically. But caution: the burden of proof lies with the owner of the dominant tenement (the one who benefits from the easement). He must demonstrate by any means (witness statements, photos, reports, invoices) that he has indeed crossed the land at least once in the last thirty years.

What few people know is that previous case law was sometimes fluctuating. Some courts of appeal required "unequivocal" or "repeated" acts. The Court of Cassation puts an end to these divergences: only the material act, even if isolated, matters.

What This Changes for You – Practically

If you are the owner of a property benefiting from a right of way easement (you are the dominant tenement), this decision is good news. You do not need to pass every day to retain your right. A passage every two or three years, provided you can prove it, is sufficient. On the other hand, if you have never used the easement for over thirty years, it is definitively extinguished.

Let's take a concrete example in Antibes. Ms L. owns a flat in an old condominium in the city centre. To access her parking space, she must cross a courtyard belonging to a neighbour. She only uses this parking two months a year, when she comes on holiday. According to the new decision, these annual passages are material acts that prevent the extinction of the easement. But caution: if she cannot prove that she has passed (no parking ticket, no witness), the neighbour could contest.

For buyers, this is a point of vigilance: when purchasing a property, check that the right of way easement has been exercised recently. Ask the seller for evidence (statements, photos). If the easement has not been used for 30 years, it is extinguished and you cannot revive it.

For owners of the servient tenement (those who suffer the passage), the decision limits your ability to have the easement extinguished. If the neighbour can prove a single passage in the last 30 years, the easement is maintained. You cannot require regular use.

undefined, I have encountered cases where owners had lost their easement because they could not prove they had used it. Now, proof is easier to provide: a bailiff's report, a dated photo, a written witness statement are sufficient.

Four Tips to Avoid This Type of Dispute

• Build a file of evidence today: Take dated photos of each passage, keep invoices for work on the path, ask a neighbour to give a written statement. Store these documents in an "easement" file.
• Use the easement at least once every 5 years: Even though the law provides for 30 years, it is better to space passages to avoid any challenge. A passage every 5 years is good practice.
• Have a bailiff record in case of conflict: If your neighbour contests your right, immediately have a bailiff's report made of your passage. This costs around €200, but can save your easement.
• Mention the easement in any sale deed: When selling your property, mention the existence of the easement in the notarial deed. This avoids surprises for the buyer.

Further Reading: Related Case Law and Developments

The Court of Cassation had already established the principle in 2006 (appeal No. 04-16.400): material acts of passage are acts of exercise. The 2026 decision merely confirms this position, but applies it strictly. It rejects any additional condition.

Conversely, in a judgment of 19 January 2022 (No. 20-21.345), the Court held that purely preparatory acts (such as feasibility studies) did not constitute acts of exercise of a right of way easement. Therefore, actual passage is required, not merely an intention.

The trend is therefore towards protection of the dominant tenement. Courts are increasingly demanding on proof, but once provided, the easement is difficult to extinguish. In the future, we can expect judges to more readily accept modern evidence (geolocation, video surveillance) to establish passage.

What You Absolutely Must Remember

• A single passage is enough to interrupt the 30-year period, provided it is proved.
• Proof is free: photos, witness statements, bailiff's reports, everything is admissible.
• If you have never passed in 30 years, the easement is extinguished. You cannot revive it.
• On sale, inform the buyer of the existence and use of the easement.
• In case of dispute, consult a lawyer lawyer to build a solid evidence file.

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