Right of Way (Servitude de passage): Can Your Neighbour Block Access to Your Property?

Imagine: you have just bought a beautiful villa in Cannes, with a sea view and a wooded garden. A few weeks after moving in, your neighbour rings your doorbell and informs you that you are using "his" path to access your garage. He asks you to stop immediately, threatening to block access. What should you do? This scenario, far from rare on the French Riviera (Côte d'Azur), raises a crucial question: must a purchaser respect rights of way (servitudes) whose existence he was unaware of?

The answer is not always straightforward, and disputes between neighbours can quickly escalate, especially in areas where land values reach peaks, such as in Nice or the Grasse hinterland (arrière-pays grassois). Property owners, tenants, property developers: all can find themselves caught up in this type of conflict, with considerable financial and practical stakes.

In a decision dated 24 September 2020, the Court of Cassation (Cour de cassation) (the highest French judicial court) provides essential clarifications on the enforceability (opposabilité) of rights of way against purchasers. This decision, which concerns a dispute between property owners, recalls the precise conditions under which a new owner is bound to respect a servitude, even if he was not aware of it at the time of purchase. Let's see together what this changes in practice for you.

The Facts: A Story That Happens Every Day

The story begins in a municipality in the south of France, where two neighbouring plots are at the heart of a dispute several years old. Mr and Mrs S., owners of a "west" plot, have benefited since 1997 from a right of way (servitude de passage) (a right to use a path) over the neighbouring "east" plot, to access the public highway. This servitude was established by a notarial deed on 30 June 1997, an official document that records this right in favour of one property (fonds) to the detriment of another.

Years later, the "east" plot is sold to a new purchaser. Upon arrival, this new owner discovers that his neighbours, Mr and Mrs S., regularly use a path crossing his property to reach the road. Unhappy, he contests the existence of this servitude, arguing that he was not informed of it during the purchase and that it was not mentioned in his deed of sale. He then decides to block access, creating a situation of landlocked property (enclave) for Mr and Mrs S.

The latter, no longer able to access their house normally, take legal action. The court and then the court of appeal rule in their favour, considering that the servitude was enforceable against the new purchaser. But he does not admit defeat and lodges an appeal (pourvoi) before the Court of Cassation (Cour de cassation), arguing that the lower courts had misapplied the law. The judicial twist shows how such technical questions can generate lengthy and costly proceedings, a phenomenon I regularly observe in my practice, particularly in the Grasse jurisdiction where neighbourhood disputes related to access are frequent.

The Court's Reasoning — Analysed

The Court of Cassation (Cour de cassation), in its judgment of 24 September 2020, dismisses the appeal of the owner of the "east" plot and confirms the lower courts' decision. Its reasoning is based on clear principles of servitude law, which it forcefully reiterates. But what exactly does this mean for litigants?

The judges rely mainly on Article 1198 of the Civil Code (Code civil), which governs the enforceability of servitudes against third parties. In plain terms, this article states that a servitude is enforceable against the purchaser of a burdened property (immeuble grevé) in three specific cases: if it has been registered (i.e., recorded with the Land Registry (service de la publicité foncière), the body that maintains records of rights over real property), if the deed of acquisition mentions it, or if he knew of its existence at the time of acquisition. In other words, the purchaser's ignorance is not always a valid excuse.

In this case, the Court notes that the right of way had been established by an authentic deed (acte authentique) (a notarial deed) in 1997 and that, even if it had not been registered, it was mentioned in previous documents and visible on the ground. The judges consider that the new purchaser, as a professional or reasonable person, should have inquired about it (s'en enquérir) during his purchase. They thus reject the argument that the servitude should not have been enforceable against him, confirming consistent case law on this point.

What few people know is that this decision fits into a logic of protecting the legal certainty of real estate transactions. By imposing on the purchaser the duty to verify existing servitudes, the Court avoids situations where a long-established right would be challenged with each change of ownership. However, be careful: this does not mean that all unregistered servitudes are automatically enforceable; it is still necessary to prove that the purchaser knew or should have known of it.

What This Changes for You — Practically

This decision has immediate practical implications for different profiles. If you are a landlord (propriétaire bailleur), be aware that servitudes affecting your property can impact the enjoyment (jouissance) by your tenants. For example, if your villa in Nice is burdened with a right of way for a neighbour, your tenant will have to tolerate this passage, even if he was not informed of it in the lease. undefined, I have encountered cases where tenants refused to pay their rent due to such inconveniences, leading to cascading conflicts.

For purchasers, this decision reinforces the importance of prior checks. If you are buying a property, you must absolutely consult the title deed (acte de vente) and the cadastral documents (documents cadastraux) to identify any potential servitudes. Otherwise, you risk discovering afterwards that your land is crossed by a path used by the neighbour, with financial consequences: an unanticipated servitude can reduce the value of your property by 5 to 15%, depending on its impact. Imagine buying an apartment in Cannes for €800,000 and then realising that a right of way reduces your privacy, leading to a potential depreciation of €80,000.

Co-owners are not spared. In a co-ownership (copropriété), a right of way can concern common parts, such as a hall or garden. If it is not mentioned in the co-ownership regulations, tensions can arise between co-owners. How to react? In case of doubt, call on a professional to examine the documents before any transaction or dispute.

Four Tips to Avoid This Type of Dispute

• Systematically check the Land Registry (publicité foncière): before buying a property, ask your notary or solicitor to consult the land registry file to identify registered servitudes. This takes a few days but can save you years of proceedings.
• Physically inspect the land: during viewings, observe the accesses, paths, fences. A trace of regular passage on your future property may reveal an undocumented servitude. Take photos and ask questions of the seller.
• Require explicit mentions in the deed of sale: if a servitude exists, ensure it is clearly described in the notarial deed. This secures your position in case of future dispute with the neighbourhood.
• Consult a lawyer in case of doubt: a real estate law solicitor can analyse the documents and advise you on the risks. In the Grasse jurisdiction, where lands are often landlocked, this precaution is particularly useful.

In-Depth Analysis: Related Case Law and Developments

The decision of 24 September 2020 fits into a well-established line of case law (jurisprudence). For example, in a judgment of 13 January 2016 (No. 14-27.237), the Court of Cassation (Cour de cassation) had already ruled that a right to light (servitude de vue) was enforceable against the purchaser provided it resulted from an agreement between former owners, even without registration. This trend shows that judges favour the stability of legal situations over excessive formalism.

On the other hand, there are divergent decisions in particular cases, such as when the servitude is prescribed (lost by time) or when it is contrary to public policy. But overall, case law is evolving towards increased responsibility of purchasers, who must exercise diligence in their investigations. For the future, this means that real estate professionals will have to integrate these checks into their practices, at the risk of seeing an increase in litigation.

Checklist Before Acting

• If you are buying a property: 1) Consult the deed of sale and cadastral documents. 2) Check the Land Registry (publicité foncière) via a notary. 3) Visit the land to spot any potential passages. 4) Question the seller about neighbours' rights.
• If you are selling a property: 1) Declare all existing servitudes in the preliminary sale agreement (compromis de vente). 2) Provide supporting documents. 3) Anticipate purchasers' questions to avoid subsequent claims.
• If you are a tenant: 1) Check the lease for any mention of servitude. 2) Report any access problem to the owner quickly. 3) Document obstructions with photos or letters.
• If you are a neighbour claiming a right: 1) Gather evidence of the servitude's existence (deeds, testimonies). 2) Attempt mediation before initiating legal action. 3) Consult a solicitor to assess your chances of success.

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