Right of Way: When a Pavement Makes Your Access Right Disappear

Imagine you own a house in Biscarrosse, with access to your land that passes through your neighbour's land. This access is what is called a right of way (a right to use part of someone else's land to access your property). You have been using it for years to get home. One day, your neighbour builds a pavement on this passage area. Suddenly, you can no longer get through. What should you do? Has your right of access disappeared? This is exactly the question the courts considered in this case.

In the Landes, where land is sometimes landlocked (without direct access to the public highway), these situations are common. In Dax as in Mont-de-Marsan, I have seen owners fight over a few square metres of passage. The question is simple but crucial: when a development makes the use of a right of way impossible, what remains of your right?

The Court of Appeal's answer is clear: if the use becomes impossible, the right of way may be extinguished. But be careful, this is not automatic. It all depends on the circumstances. This decision sheds light on an essential point of real estate law: a right only exists if it can be exercised. Let's look together at what this means in practice for you.

The facts: a story that happens every day

The story begins with two neighbouring owners. Let's call them Mr and Mrs Y, owners of land in Mont-de-Marsan, and their neighbour, Mr X. Between their plots, a conventional right of way (created by agreement between the owners) had been established several years earlier. This right of way allowed Mr X to access his property by passing through part of Mr and Mrs Y's land.

For years, everything went well. Mr X regularly used this passage for his comings and goings. But one day, Mr and Mrs Y decide to develop their land. They build a pavement exactly on the passage area. Suddenly, Mr X finds himself blocked: impossible to drive his vehicle through, difficult even to pass on foot. The pavement, by its configuration, makes the use of the right of way practically impossible.

Mr X, unhappy, takes legal action. He believes that Mr and Mrs Y have violated his right of way. He asks for the pavement to be modified or removed to restore access. Mr and Mrs Y, for their part, argue that the right of way has been extinguished since its use is no longer possible. They invoke a principle of law: when the exercise of a right of way becomes impossible, it may disappear.

The case goes up to the Court of Appeal. The judges must decide: does the right of way still exist despite the pavement? Or has it been extinguished due to the impossibility of use? This is where the legal reasoning comes into play, and it is this reasoning that will have consequences for thousands of owners.

The court's reasoning — broken down

The Court of Appeal examined the situation carefully. Its reasoning is based on several fundamental legal principles. First, it recalls that a right of way is a real right (a right that attaches to a thing, here land) that burdens one property (the land that bears the right of way, called the servient tenement) for the benefit of another property (the land that benefits from the right of way, called the dominant tenement).

Next, the court relies on Article 703 of the Civil Code, which provides that rights of way are extinguished "when things are in such a state that they can no longer be used". In other words, if the use becomes impossible, the right of way may disappear. But be careful: this impossibility must be permanent, not temporary. A mere inconvenience is not enough.

In this case, the magistrates found that the creation of the pavement had made the exercise of the passage impossible. They held sovereignly (that is, by freely assessing the facts, without their assessment being challengeable except for an error of law) that the configuration of the premises no longer allowed the use of the right of way. They therefore decided that the right of way was extinguished.

But what exactly does this change? Before this decision, some might have thought that as long as a right of way was established by agreement, it subsisted no matter what. The Court of Appeal reminds us that this is not so: a right that can no longer be exercised no longer has any reason to exist. This is a confirmation of existing case law, but one that takes a very concrete form here.

The parties' arguments were clear: Mr X argued that Mr and Mrs Y had deliberately made the passage impossible, thus violating his right. Mr and Mrs Y responded that they had merely developed their property, and if this made the passage impossible, it was the normal consequence of the extinction of the right of way. The court followed the second reasoning, finding that the impossibility of use was established.

What this means for you — in practice

If you are a landlord (who rents out your property), this decision directly concerns you. Imagine you rent out a house in Dax with a right of way over the neighbouring land. If the neighbour carries out works that make the passage impossible, your tenants could find themselves without access. You will then have to either negotiate with the neighbour or initiate proceedings. undefined, I have come across cases where such disputes cost over €10,000 in lawyer and expert fees.

For tenants, the situation is also worrying. If your access disappears, you could ask for a rent reduction or even terminate the lease. But be careful: this depends on the circumstances. If the landlord can quickly restore access, you may not be entitled to much.

Buyers must be particularly vigilant. Before buying a property, always check the rights of way that burden it. A competent notary will help you examine the state of the premises. If a right of way exists, make sure it is usable. Otherwise, you might buy a property whose access is theoretical but not real. I have seen buyers in Mont-de-Marsan discover after purchase that their "right of way" was actually a wall... too late.

For co-owners, the question also arises. If a right of way concerns a common part, and it becomes impossible to use, this can affect the value of the units. General meetings will then have to consider the issue. How to react? First, document everything. Take photos, keep exchanges with the neighbour. Then, consult a specialised lawyer quickly. Court delays can be long: often count 12 to 18 months for a first decision.

Four tips to avoid this type of dispute

• Have a precise survey carried out before any development: If you are considering works on your land, have a surveyor-expert come to check the impact on existing rights of way. What few people know is that a simple pavement can change everything.
• Document the regular use of the right of way: If you benefit from a right of way, keep proof of its use (photos, testimonies, maintenance invoices). This could be crucial in case of conflict.
• Negotiate before acting: If you are the owner of the servient tenement (the one that bears the right of way), discuss with your neighbour before doing works that could affect the passage. A simple conversation can avoid a lawsuit.
• Consult a professional at the first signs of a problem: As soon as you notice that access is becoming difficult, make an appointment with a lawyer specialised in real estate law. Early consultation costs less than court proceedings.

Deep dive: related case law and developments

This decision fits into a consistent line of case law. Already in 1985, the Court of Cassation had recalled that a right of way could be extinguished in case of impossibility of use (Cass. 3rd civ., 6 November 1985, no. 84-11.223). But each case brings its nuances. Here, it was the creation of a pavement that was decisive.

A more recent decision (CA Versailles, 10 September 2015, no. 14/05244) confirmed this principle in a different context: plantings had made a passage unusable. The courts tend to favour a pragmatic approach: if the right can no longer be exercised, it no longer has a place. What this means for the future? Owners will have to be even more attentive to the practical consequences of their developments.

Be careful, however: this case law does not mean that one can deliberately make a right of way impossible to get rid of it. If proof of dolose manoeuvring (an intention to harm) is provided, the judges could sanction the owner of the servient tenement. Good faith remains essential.

Key points to remember

1. A right of way may be extinguished if its use becomes impossible: It is not the will of the parties that prevails, but the reality of the use.

2. The impossibility must be permanent: A temporary obstacle (like short-term works) is not enough to extinguish the right of way.

3. Document everything: Photos, written exchanges, testimonies... in case of dispute, this evidence will be valuable.

4. Act quickly: If you find that your access is compromised, do not delay. Court delays are long, and the longer you wait, the more complicated the situation becomes.

5. Consult a lawyer: The law of rights of way is technical. An experienced lawyer will help you navigate these sometimes murky legal waters.

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 →