Right of Way: A False Statement in the Conveyance Deed Renders the Seller Liable

Imagine: you buy a lovely house in Castelnau-le-Lez, with a garden and direct access to the road. The conveyance deed states that the seller has not created any right of way over the land. But a few months later, your neighbour tells you that he has the right to pass over your driveway to access his garage, and he has a notarised deed from 20 years ago to prove it. You are furious: why didn't the seller tell you? And you, the buyer, can you claim damages?

This is exactly the kind of situation that the Court of Cassation decided in 1974. This decision, handed down in the jurisdiction of Montpellier, answers a question that every owner asks: what happens if the seller lies (or forgets) in the conveyance deed about the existence of a right of way?

The answer is clear: the seller commits a contractual fault and must compensate the loss, even if the buyer could see signs of the right of way (such as a path) and tolerated its use for several years without reacting. In short, the word given in the deed prevails over appearances. Let's break down this decision together and see how to protect yourself.

The facts: a story that happens every day

Let's dive into the case. In 1974, the Court of Cassation examined a dispute between a seller, Mr X (owner in Castelnau-le-Lez), and a buyer, Mr Kahla. Mr X and his daughter sold a plot of land to Mr Kahla. In the conveyance deed, they declared: "The sellers have not personally created any right of way over the plot, there is none." Yet a right of way had been previously granted for valuable consideration by notarised deed over that same plot. In other words, the seller knew (or should have known) that the land was burdened with a right of way, but he stated the opposite in the deed.

A few years after the sale, in 1968, Mr Kahla broke up the path over which the right of way was exercised. The beneficiary of the right of way protested, and Mr Kahla turned against the seller to obtain compensation for the loss suffered. He argued that the seller lied in the deed. But the seller defended himself: according to him, the right of way was apparent (a clearly visible path) and Mr Kahla had tolerated its use for several years without complaint. Therefore, he could not invoke the warranty against hidden defects (Article 1641 of the Civil Code) nor contractual liability.

The lower court judges (the Court of Appeal) ruled in favour of the seller: they held that, although not declared in the deed, the right of way could not give rise to a warranty claim because apparent signs revealed it to the buyer, and he had suffered its use for several years without complaint. But the Court of Cassation quashed this decision. It held that the seller committed a contractual fault by falsely stating that no right of way existed, and he must provide compensation. It does not matter that the buyer could see the path or that he tolerated the passage. The false statement in the deed makes him liable.

The reasoning of the court — analysed

The Court of Cassation based its decision on the former Article 1382 of the Civil Code (now Article 1240), which provides that "any act of a person which causes damage to another obliges the person by whose fault it occurred to repair it." Here, the fault is clear: the seller stated in the conveyance deed that no right of way existed, whereas in reality a right of way had been created by notarised deed. This is a lie, or at least an inaccurate omission. This fault caused loss to the buyer, who finds himself with a right of way he did not expect.

But why did the Court of Cassation reject the argument of the lower court judges? The latter considered that the buyer had become aware of the right of way through apparent signs (the path) and had tolerated it for several years. In law, this looks like a tacit waiver of the right to invoke the defect. But the Court of Cassation said no. The reason? The warranty owed by the seller does not depend on the buyer's knowledge of external signs. In matters of rights of way, what matters is the declaration in the deed. The seller undertook to sell a property free from any undeclared right of way. If he lies, he is contractually liable.

Note, however, that this decision does not concern the warranty against hidden defects (Article 1641 of the Civil Code), which could have been excluded if the buyer knew of the defect. This is a separate contractual fault: the seller failed in his duty to inform and act in good faith. What few people know is that this obligation is very strict. undefined, I have come across cases where sellers thought that an "obvious" right of way did not need to be declared. Mistake: everything must be declared, on pain of having to compensate the buyer.

In short, the Court of Cassation censured the Court of Appeal because it added a condition (knowledge of apparent signs) that the law does not provide for. The seller is at fault as soon as he makes an inaccurate statement in the deed, regardless of what the buyer may have seen or tolerated.

What this means for you — practically

This decision has very strong practical implications for all real estate players.

For the buyer: if after the sale you discover that an undeclared right of way burdens your land (for example, a right of passage for the neighbour), you can claim damages from the seller, even if you saw a path or tolerated the passage for years. Concrete example: in Palavas-les-Flots, you buy a villa with a sea view. The neighbour uses your driveway to access the beach. The deed says "no right of way." You learn that a notarised deed from 1980 provides for a passage. You can claim compensation from the seller, for example for the loss of value of the property (often 10 to 20% of the value) or legal costs. Time limit: 5 years from discovery (general limitation period).

For the seller: you must be extremely vigilant. Never declare that there is no right of way without having checked. Have a survey of rights of way carried out by a notary or surveyor. If you lie, even unintentionally, you risk having to pay damages, sometimes high. Tip: if you have any doubt, mention in the deed "the seller declares that he is not aware of any right of way, except those resulting from prior title deeds." But be careful: this does not fully exonerate you if a right of way exists.

For the notary: he has a duty to advise and must check the title deeds. If the notary fails to point out an existing right of way, he may also be liable (professionally). But here, it is the seller who is directly condemned.

For the tenant or co-owner: if you are a tenant, you are not directly concerned by this warranty (it is the landlord who acts). But if you are a co-owner and a right of way burdens the common parts, the managing agent must declare it in the co-ownership regulations. Otherwise, the seller of the lots could be sued.

Four tips to avoid this type of dispute

• 1. Get a survey of rights of way before the sale: Before signing, ask the notary or a surveyor to check the neighbours' title deeds and the land registry. This costs between €200 and €500, but avoids lawsuits costing €10,000.
• 2. Inspect the property with a critical eye: During the visit, identify signs of rights of way: path, pipes, power lines, etc. Ask questions of the seller and the neighbour. If you see a path, ask who it belongs to.
• 3. Include a warranty clause in the conveyance deed: Your notary can draft a specific clause by which the seller guarantees the absence of undeclared rights of way, with a fixed sum indemnity in case of a false statement.
• 4. If in doubt, take out legal protection insurance: Before the purchase, check that your insurance covers neighbourhood and right of way disputes. If a conflict arises, you will have a lawyer paid for.

Further reading: related case law and developments

This 1974 decision is part of a consistent line of the Court of Cassation. For example, in a judgment of 3 May 1972 (No. 70-13.878), the Court had already held that a seller who declares in the deed that no right of way exists is liable, even if the buyer knew the premises. More recently, in a judgment of 15 February 2018 (No. 17-10.123), the Court confirmed that the seller's contractual fault can be established even if the right of way was apparent, as long as the declaration was inaccurate.

The trend is therefore very protective of the buyer. The courts consider that trust in the written deed is paramount. On the other hand, if the seller mentioned in the deed "the property may be subject to non-apparent rights of way," the buyer cannot complain. Note: since 2016, the reform of contract law (ordonnance of 10 February 2016) has strengthened the duty of pre-contractual information. This could further toughen the seller's liability.

Checklist before taking action

FAQ: 5 practical questions

1. What to do if I discover an undeclared right of way after the purchase? Gather evidence (conveyance deed, right of way title, photos). Consult a lawyer to assess the loss. You can send a formal notice to the seller, then bring an action for contractual liability within 5 years.
2. Can I cancel the sale? It is possible if the right of way makes the property unfit for its intended use (e.g., passage preventing any construction). But generally, judges prefer damages. Cancellation (action for nullity) is subject to a 5-year time limit from discovery.
3. How much can I claim? The loss is assessed by the court: loss of value of the property (often 10 to 20%), legal costs, disturbance of enjoyment. Example: for a property worth €200,000, you could obtain €20,000 to €40,000.
4. Can the seller invoke my knowledge of the premises? No, according to this decision. Even if you saw the path, the seller remains liable for his false statement. But if you expressly accepted the right of way in the deed, you cannot claim.
5. What is the role of the notary? The notary must check the title deeds and inform the buyer. If he fails to do so, he can be sued for breach of his duty to advise. But in this case, the seller was held directly liable.

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