Right of way: payment of compensation is not a prerequisite for accessing your land

Imagine: you buy a house with a large plot of land in Bricquebec. To access it, you must cross your neighbour's plot, who agrees to grant you a right of way. Everything seems settled... until the day he blocks your access, demanding that you first pay him a sum of money. What can you do? This question was put to the Court of Cassation by a landowner in Coutances. The answer is clear: the exercise of a right of way is not conditional on the prior payment of compensation for the right of way over a landlocked property.

Behind this legal jargon lies a very concrete reality: if you own a landlocked plot (with no direct access to a public road), you benefit from a right of way over your neighbour's land. But can this right be conditional on prior payment? The Court of Cassation ruled in March 2021, bringing welcome legal certainty for thousands of landowners.

This judgment no. 20-15.155 is a small revolution in the world of easements. It reminds us that a right of way is a real right (a right over a thing, here the property), and not a mere tolerance subject to a financial condition. Let us decipher this decision together, its facts, its reasoning, and above all what it changes for you.

The facts: a story that happens every day

Mr X owns a plot of land in Coutances. This plot is landlocked: to access the road, he must pass through his neighbour's plot, Mr Y. One day, an agreement is reached: Mr Y grants a right of way easement (the right for Mr X to cross his land), and in return, compensation is set at €31,880 (including €17,120 for the land take and €14,760 for nuisance). Mr X begins to use the passage and even builds an access ramp. But Mr Y, believing he has not been paid, demands the demolition of the ramp and prohibits any passage.

Tensions rise. Mr X takes the matter to court, which rules in his favour. Mr Y appeals, then appeals to the Court of Cassation. His argument: the right of way cannot be exercised until the compensation has been paid. According to him, without payment, there is no effective right. The Court of Appeal had already rejected this position, and the Court of Cassation confirms.

The judges of the High Court hold that "the exercise of a right of way is not conditional on the prior payment of compensation for the right of way over a landlocked property". In other words, Mr X may use the passage and keep his ramp, even if he has not yet paid the €31,880. This does not mean that he is exempt from paying: the compensation remains due, but its non-payment does not justify obstruction of the passage.

The reasoning of the court — explained

To understand this decision, we must go back to the texts. The Civil Code, in its article 682, provides that the owner of a landlocked plot (with no access to a public road) has the right to claim a right of way over neighbouring land. This right is a legal easement, i.e. imposed by law, and not a mere favour. Article 682 is the basis of the right to access a landlocked property. Then, article 683 specifies that the passage must be taken from the shortest and least damaging side for the servient tenement (the land that supports the passage). Finally, article 682-1 (in its applicable version) provides that compensation is due to the owner of the servient tenement in proportion to the damage caused.

But nothing in these texts states that payment of the compensation is a condition for exercising the right of way. The Court of Cassation reminds us: the right of way arises from the situation of landlocking, not from payment. The compensation is a consequence, not a prerequisite.

The judges therefore reject Mr Y's argument, which equated the right of way to a debt (a sum due) whose performance would be suspended until payment. However, in property law (the law governing ownership), an easement is a real right, which attaches to the land (the plot) and not to the person. Once the title is established (by a notarial deed or a court decision), the owner of the dominant tenement (the one who benefits from the passage) may use it immediately.

This decision is in line with consistent case law. Already in 2015, the Court of Cassation had ruled that the owner of the servient tenement cannot oppose the passage on the grounds that the compensation has not been paid (Civ. 3e, 28 May 2015, no. 14-15.984). The 2021 judgment confirms and clarifies this position, applying it to a case where an access ramp had been built. The judges consider that the construction of the ramp is a consequence of the exercise of the right, and not a violation of the neighbour's right.

What this changes for you — practically

This decision has immediate practical consequences for landowners, whether they are on the side of the dominant tenement or the servient tenement.

If you own a landlocked plot (dominant tenement): You may use the passage as soon as your right is recognised, without waiting to pay the compensation. Caution: this does not exempt you from paying! The compensation remains due, and your neighbour may claim the amount set by the judge or by agreement. But he cannot physically block you. Practical example: in Bricquebec, a 5,000 m² plot with no access obtained an easement by court decision. The compensation was set at €25,000. The owner was able to build his access road immediately, and paid the compensation six months later, without the neighbour being able to oppose it.

If you own the servient tenement (the one that suffers the passage): You cannot demand prior payment to authorise the passage. However, you can take legal action to obtain payment of the compensation if it is not paid within a reasonable time. You can also claim damages if the passage causes excessive damage. But beware: blocking access exposes you to proceedings for disturbance of enjoyment (interim injunction to stop the disturbance).

For buyers: When purchasing land, check whether it is landlocked and whether an easement already exists. Ask the seller if there is any unpaid compensation. You could inherit this debt. But you will be able to use the passage without waiting.

For co-owners: This decision also applies to easements between co-ownership lots. If a lot is landlocked, the co-owner may pass even if the compensation has not been paid.

Four tips to avoid this type of dispute

• Have the landlocking confirmed by a surveyor: Before any action, a topographical survey (precise plan of the land) will establish that your plot does not have sufficient access to a public road. This is the essential evidence to obtain an easement.
• Negotiate a written agreement before building: If you need to build a path or ramp, formalise the easement by a notarial deed (authentic act) that sets out the route, maintenance arrangements and the amount of compensation. This avoids later disputes.
• Never block the passage: Even if the compensation has not been paid, prohibiting access is illegal. You risk being ordered to pay damages for disturbance of enjoyment. Prefer a formal notice (registered letter with acknowledgement of receipt) to pay, then legal action.
• Keep all evidence of your right: Keep the deed of easement, correspondence, court decisions. In the event of a dispute, you will be able to prove the existence of your right without having to prove payment.

Further reading: related case law and developments

This decision is part of a line of protection of the dominant tenement. Already in 2016, the Court of Cassation had ruled that the owner of the servient tenement cannot oppose the exercise of a right of way by invoking non-payment of compensation (Civ. 3e, 15 September 2016, no. 15-20.618). The 2021 judgment goes further by specifying that even the construction of an access ramp (which physically alters the servient tenement) is permitted as long as it is necessary for the exercise of the right of way.

However, a 2018 decision (Civ. 3e, 22 November 2018, no. 17-26.972) seemed to take a step backwards by requiring that the compensation be previously set by the judge before exercising the passage. But that decision was specific to a case where the passage had not yet been judicially established. The 2021 judgment clarifies that once the right is recognised (by title or judgment), payment is not a prerequisite.

The current trend is therefore to favour the effectiveness of the right of way, even if it means separating the exercise of the right from the obligation to pay. This secures the position of owners of landlocked plots, who can develop their land without fear of abusive blocking.

Key points to remember

• Can I be blocked if I do not pay the compensation for the right of way over a landlocked property? No. The right of way may be exercised as soon as your right is recognised (by title or court decision). Payment of compensation is a separate obligation, but its non-payment does not justify obstruction.
• What if my neighbour blocks access despite everything? You can apply to the interim relief judge (urgent application) to restore the passage under penalty (daily sum for delay). You can also claim damages for the loss suffered.
• Is the compensation due even if I do not use the passage? Yes, if it has been fixed by an agreement or court decision. The compensation compensates for the loss of value of the servient tenement and nuisance, regardless of actual use.
• Can I challenge the amount of compensation after exercising the passage? Yes, you can apply for a revision in court if the initial amount was manifestly excessive or insufficient, but only within 5 years of the fixing.
• Does this rule apply in co-ownership? Yes, if a lot is landlocked (for example, a cellar with no direct access), the co-owner may claim a right of way over the common parts or over another lot, without prior payment of compensation.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) may save you months of proceedings — and often much more. Book an appointment →