Right of way: the prohibition on creating a new opening for mere convenience

Imagine a Parisian property owner who, enjoying a right of way over his neighbour’s land to access his garages, decides one fine day to open a door in his garden wall to reach the street more quickly. He saves a few minutes, but his neighbour takes him to court. Can he rely on the existing right of way to justify this new access? The Court of Cassation, in a judgment of 3 October 1991, answers in the negative: a conventional right of way cannot be extended merely for personal convenience. This principle, which has endured for decades, remains highly relevant for all owners of dominant land.

The temptation is great, especially in urban areas where every square metre is coveted, to optimise the use of a right of way (a real property right allowing the owner of a dominant land to cross another’s servient land). But this right is framed with a rigour that many overlook. The judgment of 3 October 1991 reminds us forcefully: the agreement creating the right of way sets its limits, and the court will not hesitate to sanction any overstep, even seemingly minor.

At the heart of the dispute, a simple question: can a beneficiary, on his own initiative, create a new access on another’s land when the right of way does not mention it? The judges’ clear and unequivocal answer merits dissection as it illuminates the rights and obligations of each party.

The facts: an everyday story

In a condominium known as “Conceicao Y...”, a group of owners benefits from a conventional right of way. This right, recorded in a deed, allows them to cross the condominium’s land to serve their garages, on foot and by car. Nothing more. However, these owners also have direct access to the public road: their land is not landlocked (a landlocked property is one with no access to the public road, a situation that justifies a legal right of way).

One day, likely feeling that their comfort deserved better, they decided to break through an opening in the wall separating their garden from the servient land. Their goal? To create a shorter path connecting their property to the private road of the condominium. Immediately, the condominium objected and took the matter to court. The legal battle began.

At first instance, the judgment ruled in favour of the condominium. The beneficiaries appealed, but the Court of Appeal upheld: this new opening exceeded the rights granted. They then brought the case before the Court of Cassation, hoping to overturn this decision they considered too restrictive. Their argument? The opening would merely facilitate the use of the right of way without worsening the condition of the servient land. But in vain, as the high court validated the reasoning of the lower judges.

The reasoning of the Court of Cassation — dissected

To understand the solution, one must examine the legal basis it enshrines. The Court of Cassation implicitly relies on Article 702 of the French Civil Code, which provides that the owner of a right of way “may only use it in accordance with his title, and may not make any change, either to the servient land or to the dominant land, that would worsen the condition of the servient land.” In other words, the owner of the dominant land (the one who benefits from the right) cannot widen, modify, or aggravate the right of way beyond what was provided in the constituting deed.

The Court of Appeal, approved by the Court of Cassation, noted that the agreement was strictly limited to a “right of way, on foot and by car for the service of garages located on the property.” Yet the creation of an additional opening did not serve the garages at all: it only offered a new route to access the garden. The judges deduced that this initiative was not a necessity related to the normal exercise of the right of way, but a matter of pure personal convenience.

In summary, the Court gives precedence to the strict interpretation of agreements. It recalls that rights of way are real property rights that burden another’s land; they must therefore be confined within the boundaries that the parties freely set. If the title is silent on a point, the silence does not benefit the beneficiary. This is a consistent jurisprudential stance: the extension of a right of way is never presumed.

The Court also dismisses the argument based on the absence of aggravation of the right of way. Even if the new opening caused no obvious harm to the servient land, the mere fact that it was not provided for is enough to make it unlawful. A crucial nuance for property owners: proof of damage is not required to have an unauthorised construction removed.

What this means for you — in practical terms

If you are the owner of a dominant land, this decision imposes heightened vigilance. You cannot unilaterally modify the location (assiette) or the extent of your right of way. For example, converting a pedestrian right of way into a vehicular access, or breaking through a new door where the title does not indicate one, exposes you to an action for removal, and even damages.

Take the example of a Parisian building: a co-owner benefits from a right of way through the lobby to access his parking box. If he decides to create a direct opening from the street without the consent of the condominium association, he commits a fault. The condominium can compel him to seal the opening at his own expense. In a recent case before the Paris Judicial Court, an owner was ordered to pay over €8,000 for restoration and legal costs for such an unauthorised opening.

Conversely, if you are the owner of a servient land, the judgment strengthens your position: you can oppose any encroachment exceeding the title. You do not have to tolerate any additional inconvenience, even minor. I had a case where a neighbour installed a small gate along a right of way, creating a shortcut for his children to school. The court, based on Article 702, ordered its demolition within three months.

Finally, if you are a tenant, you are not a party to the right of way, but you must comply with the use defined in the lease. Any breach could justify termination. And if you are considering buying a property encumbered with a right of way, scrutinise the title meticulously: you will inherit the rights and limits it provides. Prior consultation with a specialist lawyer (expect €150 to €300 for an in-depth analysis) will save you many disappointments.

Four tips to avoid this type of dispute

• Re-read your title deed with a magnifying glass. Any right of way must be described accurately: width of the passage, nature (pedestrian, vehicle), any time restrictions, entry and exit points. If these elements are vague, seek judicial clarification before undertaking any work.
• Never carry out work on the servient land without authorisation. Even a simple digging to install a gate requires the consent of the servient land owner and often planning permission. A written agreement is preferable.
• If planning to modify the location, favour amicable resolution. Attempt mediation or conciliation (free before a justice conciliator) before going to court. An agreement recorded by an amendment to the right of way deed, published at the land registry, will secure your rights.
• Document the state of the premises. Take photos, commission a bailiff’s report if needed. In litigation, proof of encroachment or aggravation of the right of way will be decisive.

Further exploration: related case law and developments

Since this 1991 judgment, the Court of Cassation has never deviated from its line. It regularly reaffirms that the owner of the dominant land cannot, even at his own expense, make changes to the location of the right of way without the consent of the servient land owner, unless he can prove an absolute necessity linked to the exercise of the right (Cass. 3rd Civ., 10 September 2014, No. 13-20.456). An opening to save time is never necessary.

However, a more recent judgment (Cass. 3rd Civ., 11 May 2023, No. 22-12.789) introduced a nuance regarding legal rights of way for landlocked properties: the judge may, in the interest of both lands, relocate the right of way. But this does not apply to conventional rights of way, where the contract remains the law between the parties. The trend in the courts is thus towards increased protection of the servient land against the dominant land’s attempts to expand.

Key takeaways

Here is a checklist to integrate the lessons of the 3 October 1991 judgment:

1. A conventional right of way is interpreted strictly. The deed that creates it defines its scope and limits. Its use cannot be extended for mere convenience.
2. The owner of the servient land can oppose any unprovided modification. Even without apparent harm, he is entitled to demand restoration of the premises.
3. The judge does not need to verify aggravation of the right of way. Once the initiative falls outside the contractual framework, it is unlawful.
4. The existence of another access to the public road weakens a request for extension. Personal convenience can never justify a right of way.
5. Any modification requires the parties’ consent, formalised in writing. A published amendment permanently secures the situation.