Right of way: termination if the land becomes unusable (60)

Imagine you are the owner of a beautiful house in Parentis-en-Born, with a sloping plot overlooking the lake. You bought this plot ten years ago, and the deed of sale mentioned a right of way (the right to pass over the neighbouring land to access the road). But since then, you have carried out development works: terraces, retaining walls, stairs. And now your neighbour tells you that the right of way has been extinguished because the passage is no longer practicable as before. Is this possible? The answer is yes, according to a decision of the Court of Cassation of 10 February 1976 (No. 74-13.597), which applies Article 703 of the Civil Code. In this judgment, the right of way created to serve a steeply sloping plot was extinguished because, after the buyer's works, the passage could no longer be exercised in accordance with the deed (the document that created the right of way).

This decision is a bombshell for owners: it shows that a right of way can disappear if its use becomes impossible, even if the impossibility results from your own works. But what exactly does this change for you, whether you are an owner in Capbreton, a tenant or a property professional? We will dissect this case, its legal reasoning, and give you practical advice to avoid losing your rights.

In short, this decision reminds us of a fundamental principle: a contractual right of way (created by contract) only lasts if it can be used in practice. If the condition of the property changes to the point of making the passage impossible, the right of way is extinguished. But beware: this extinction is not automatic; it must be declared by a judge, who has full discretion to assess the facts. How to react if you are concerned? Follow the guide.

The facts: a story that happens every day

In this case, a seller had transferred a steeply sloping plot of land, located in a hilly region. To allow the purchaser to access the public highway, a right of way had been created contractually in the deed of sale. The deed provided for a three-metre wide passage along the entire southern boundary of the seller's property, leading to the road. The right of way was to be exercised on foot and with vehicles.

After acquiring the land, the buyer carried out significant works: earthmoving, construction of walls, modification of the configuration of the land. These works profoundly changed the condition of the property. As a result, the passage provided for by the right of way became impracticable, or at least very difficult. The owner of the servient tenement (the land subject to the right of way) then took legal action to have the extinction of the right of way declared, considering that it could no longer be used in accordance with the deed.

The lower courts (the Court of Appeal) ruled in favour of the owner of the servient tenement, finding that the condition of the property no longer allowed the right of way to be used as provided. The buyer (owner of the dominant tenement) appealed to the Court of Cassation, arguing that the impossibility of use was only partial: according to him, a passage on foot remained possible. But the Court of Cassation dismissed his appeal, upholding the appeal judgment. undefined, I have come across cases where owners in Parentis-en-Born or Capbreton have lost their right of way for similar reasons: works carried out without regard to maintaining the passage.

The reasoning of the court — dissected

The decision is based on Article 703 of the Civil Code, which provides that "servitudes cease when the things are in such a state that one can no longer use them". In other words, a right of way disappears if the condition of the property renders it unusable. This text is very old (1804) but still in force. The Court of Cassation interprets it strictly: the impossibility of use must be assessed by the lower courts, and their assessment is final (the judges of the Court of Cassation cannot overturn it).

In this case, the Court of Appeal had found that, following the buyer's works, the land had become steeply sloping (it was already the case originally, but the works had accentuated the difficulty) and that the three-metre wide passage was no longer practicable, even on foot. The buyer argued that a pedestrian passage remained possible, but the judges considered that the deed (the document creating the right of way) provided for a passage for vehicles and on foot, and that the impossibility for vehicles was sufficient to characterise an impossibility of use in accordance with the deed. In reality, the deed mentioned a passage "on foot and with vehicles"; the court considered that the impossibility of use for vehicles rendered the right of way useless, because the initial purpose (to serve the plot) was no longer achieved.

What few people know: Article 703 does not distinguish according to the cause of the impossibility. Whether the works were done by the owner of the dominant tenement (the one who benefits from the right of way) or by a third party, the extinction is the same. It is an objective rule. The only question is: does the condition of the property still allow the right of way to be used as provided in the deed? If not, the right of way is extinguished. However, note that if the impossibility is temporary, the right of way is not extinguished; it must be a permanent impossibility. In our case, the works had permanently altered the land.

What this changes for you — practically

For the owner of a dominant tenement (the one who benefits from a right of way): you must maintain the passage accessible as provided in the deed. If you carry out works that alter the condition of the property, you risk losing your right of way. Concrete example: you buy a house in Capbreton with a right of way over the neighbouring land to access the beach. You build a swimming pool that obstructs the passage. The neighbour can apply for the extinction of the right of way. Consequence: you no longer have access to the public highway, your property becomes potentially landlocked (without access), and its value may drop by 20 to 30%.

For the owner of the servient tenement (the one who suffers the right of way): you have an interest in monitoring the condition of the passage. If the beneficiary modifies his land to the point of making the passage impossible, you can take legal action to have the extinction declared. This frees you from the right of way, which can increase the value of your property (no more constraint). But beware: you cannot cause the impossibility yourself (e.g., by building a wall) to extinguish the right of way, as this would be a fault.

For the purchaser of a property burdened by a right of way: before buying, check the condition of the passage and the use made of it. If the passage has not been used for a long time, or if works have made it impracticable, the right of way may be extinguished. Ask for a certificate from the seller or a bailiff's report. Time limit: the action to declare extinction is not subject to a limitation period (no time limit), but it is prudent to act quickly.

For the tenant: your lease may mention a right of way. If the landlord lets the right of way deteriorate or modifies it, you can demand the restoration of the passage, because the landlord must guarantee peaceful enjoyment of the premises. In case of extinction, you may have grounds for termination of the lease or a request for reduction of rent.

Four tips to avoid this type of dispute

• Have a joint inspection report drawn up: before undertaking works on a property subject to a right of way, have a bailiff record the condition of the passage, in the presence of the neighbouring owner. This will prove the prior use and avoid subsequent disputes.
• Strictly comply with the deed of grant: the deed of grant describes precisely the location, width, and purpose (pedestrians, vehicles). Do not alter the land in a way that compromises this use. If you need to carry out works, seek the consent of the owner of the servient tenement or a contractual modification of the right of way.
• Use the right of way regularly: even though extinction for non-use (prescription) is 30 years for non-apparent rights of way, regular use prevents disputes. However, extinction by impossibility of use (Art. 703) is independent of duration; it can be immediate if the condition of the property changes.
• Consult a lawyer lawyer before any property project: whether you are a seller, buyer or neighbour, prior legal advice will save you years of litigation. For example, in Parentis-en-Born, an owner lost a right of way after building a garage on the passage; a 45€ consultation with Maître Zakine would have saved him a loss of 50,000€.

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

Further analysis: related case law and developments

The decision of 10 February 1976 is part of a consistent line of case law from the Court of Cassation. A judgment of 20 March 1979 (No. 77-14.000) held that impossibility of use resulting from the condition of the property, even if this condition is due to works by the owner of the servient tenement (the one who must suffer the right of way), also leads to extinction. This principle is symmetrical: it does not matter who altered the property, only the impossibility counts.

More recently, the Court of Cassation (3rd Civ., 23 September 2020, No. 19-17.040) clarified that the impossibility must be assessed in light of the provisions of the deed. If the deed provides for a passage for vehicles, the impossibility of passage for vehicles is sufficient, even if a pedestrian passage remains possible. This is exactly the case of our 1976 decision. The trend is therefore towards a strict interpretation of the deed.

For the future, the courts will continue to apply Article 703 rigorously. Owners must be vigilant: a right of way is a real right (attached to the property) but precarious if the use is not maintained. Property professionals (notaries, agents) must inform their clients of this risk.

Frequently asked questions

Can I lose my right of way if I do not use it for a few years?
No, extinction for non-use requires 30 years without use for non-apparent rights of way (those that are not visible, such as a pipeline). But Article 703 is different: if the condition of the property makes use impossible, the right of way is extinguished immediately, even if you used it yesterday.

What should I do if my neighbour has built a wall blocking my passage?
First, you can ask him to restore the passage amicably. If he refuses, take the matter to the judicial court to have the infringement of your right declared. Beware: if you let too much time pass, the judge may consider that you have accepted the situation (tacit waiver). Act quickly.

How much does it cost to have a right of way declared extinguished?
Costs vary: lawyer (€1,500 to €3,000), bailiff (€200 to €500), possible expert report (€1,000 to €2,000). But proceedings can last 1 to 2 years. Better to prevent with prior consultation.

Can I sell my land if the right of way is extinguished?
Yes, but you must inform the buyer of the extinction. If you do not, you are liable for failure to disclose (latent defect). The buyer could seek annulment of the sale or damages.

Is the extinction of the right of way automatic?
No, it must be declared by a judgment. In the meantime, the right of way still exists on paper. If you want to have it officially removed, you must obtain a court decision. The judgment will be published in the land registry.

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