Right of Way: When Your Neighbour Alters Access Without Your Consent

Imagine you own a beautiful bastide in Valbonne, with private access crossing your neighbour's property. This access, established by contract decades ago, allows you to reach the main road. One day, your neighbour decides to discreetly move the passage by a few metres, thus altering your usual route. You use this new path for years without protesting. Thirty years later, your neighbour suddenly blocks your access, arguing that you no longer have the right to the original passage. What can you do?

This situation, more common than one might think in residential areas of the Côte d'Azur, raises a fundamental question: can you lose a right of way (easement) because you have used it differently for a long time? The answer, given by the Court of Cassation in this decision, is clear and deserves to be understood by every property owner.

In short, this decision reminds us that when a right of way is established by contract (contractual easement), its exact route cannot be modified without the agreement of both parties. Even if you use a different path for thirty years, this does not grant you a new right nor cause you to lose the old one. But what does this change in practice for you?

The Facts: A Story That Happens Every Day

In this case, we are in 1966. Two neighbouring property owners establish by notarial deed two easements (real rights burdening one property for the benefit of another) on their land: a "Northern easement" and a "Southern easement". These rights of way allow each to access their respective properties. Imagine Mr. Durand in Cannes, owner of an enclosed villa (without direct access to the public highway), benefiting from a passage over his neighbour Mr. Martin's land to reach the road.

Years pass. The owners change. The company Garrot Chaillac becomes the owner of the servient tenement (the property that bears the easement), while the Y... co-owners acquire the dominant tenement (the property that benefits from the easement). Without formal agreement, the site (the concrete route) of the Southern easement is gradually moved. The new owners use this modified path for decades, almost forgetting the original location provided for in the contract.

In 2009, the conflict erupts. The company Garrot Chaillac sues the Y... co-owners before the court, arguing that the Southern easement is extinguished (has disappeared) due to non-use for thirty years. In other words, since the beneficiaries have not used the passage as provided for in the contract for over thirty years, they would have lost their right. The Court of Appeal of Nîmes, seized at first instance, rejects this argument. It considers that the easement is not extinguished because it has always been exercised, even on a different route. The company then appeals to the Court of Cassation.

The Court's Reasoning — Analysed

The Court of Cassation, the highest French judicial court, will settle this dispute based on Articles 706 and 691 of the Civil Code. But what do these texts say? Article 691 defines discontinuous easements (those that require a human act to be exercised, such as a passage), while Article 706 specifies the conditions for their extinction (disappearance).

The judges' reasoning is rigorous. They first recall a fundamental principle: a contractual easement (established by contract) cannot be modified unilaterally. The owner of the dominant tenement (the one benefiting from the passage) cannot, by their sole will, move the site of the easement. In short, if your contract provides for a passage 2 metres wide along the east wall, you cannot decide to move it to the middle of the garden.

Next, the Court examines the argument of non-use. The company Garrot Chaillac argued that, since the Y... co-owners had not used the original passage for thirty years, the easement was extinguished. But be careful: the Court carefully distinguishes. Non-use can indeed extinguish certain easements, but only when they are established by prescription (acquisition through prolonged use) or by destination of the owner (a situation where two properties that belonged to the same owner are separated). For contractual easements like here, non-use of the contractual route is not sufficient to make them disappear.

The Court therefore quashes the Court of Appeal's judgment, considering that it violated Articles 706 and 691. The message is clear: one cannot acquire by usage a site different from that agreed contractually. If you use a different path for thirty years, this does not give you the right to this new path, but it also does not cause you to lose your right to the original path. undefined, I have encountered cases where property owners thought they had "acquired" a new passage through prolonged use, but the case law is consistent on this point.

What This Changes for You — Practically

This decision has very practical implications for different profiles. If you are a landlord (who rents out your property), be aware that any modification of the route of a contractual passage without written agreement can create disputes with your tenants or neighbours. Imagine you rent out a villa in Cannes with a specific right of way. If you tacitly authorise a different route, you risk complications when the property is returned.

For purchasers, this decision is crucial. Before buying a property, scrupulously check the exact site of easements. A competent notary should show you the route on a plan and on the ground. If the passage used differs from that provided for in the title, demand regularisation before purchase. In the Grasse district, I have seen properties lose 10 to 15% of their value due to poorly defined easements.

Co-owners must also be vigilant. If your co-ownership benefits from a right of way over neighbouring land, any modification, even minor, must be decided in a general meeting and formalised in writing. A simple verbal agreement between the managing agent and the neighbour is not sufficient.

Finally, for real estate professionals (agents, developers), this decision reminds us of the importance of transparency. When selling a property in Valbonne, for example, explicitly mention if the passage used differs from the contractual route. Otherwise, you risk an action for latent defects, with damages that can reach several tens of thousands of euros.

Four Tips to Avoid This Type of Dispute

• Have a precise plan drawn up: When creating an easement, demand a detailed plan, signed by both parties and annexed to the notarial deed. This plan should clearly indicate the site (width, route, reference points).
• Document any change: If you need to temporarily modify the route (for works, for example), establish a written addendum, even a simple one, specifying the duration and conditions for returning to the initial route.
• Check before buying: When acquiring a property, physically compare the passage used with that described in the titles. If there is a difference, demand regularisation before signing.
• Consult quickly in case of conflict: As soon as a neighbour contests or modifies a passage, seek advice from a specialised solicitor. A recorded delivery letter sent in time can avoid years of litigation.

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In-Depth Analysis: Related Case Law and Developments

This decision fits into consistent case law. Already in 1995 (Cass. 3rd civ., 15 February 1995, no. 93-15.187), the Court of Cassation had reaffirmed that a contractual easement can only be modified by agreement of the parties. More recently, in 2018 (Cass. 3rd civ., 12 July 2018, no. 17-20.168), it specified that even tacit agreement (not in writing) is not sufficient to durably modify the site of an easement.

What few people know is that this jurisprudential rigour contrasts with a certain flexibility for easements established by prescription. In this case, the site can evolve with usage, but only if this usage is continuous, public, and unequivocal for thirty years. The trend of the courts is clear: to protect the legal certainty of agreements. For the future, this means that property owners must be increasingly attentive to the written formalisation of their rights.

In Practice: What to Do

FAQ - Frequently Asked Questions:

1. My neighbour moved our shared passage 20 years ago. Have I lost my right?
No. Your right to the original passage subsists. You can demand the re-establishment of the contractual route, but you will probably have to initiate legal proceedings.

2. Can I acquire a new passage through prolonged use?
Yes, but only if this passage was not provided for by contract. You must then prove continuous, public, and peaceful use for 30 years (prescription).

3. What to do if I discover a difference between the passage used and the contract?
Consult a notary or a specialised solicitor. Depending on the case, you can regularise by addendum or demand a return to the initial route.

4. How much does legal action to enforce an easement cost?
Costs vary depending on complexity. Allow €3,000 to €8,000 at first instance, plus expert fees if necessary. Prior mediation (around €500) is often recommended.

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