Right of way: what to do when the neighbour blocks your access?

Imagine the scene: you have just bought a lovely villa in Le Cannet, with a stunning sea view. Everything is perfect, until the day your neighbour tells you that he has the right to cross your garden to access his property. You have never heard of this easement (a real right over land that burdens your land for the benefit of another). Neither has your solicitor. Yet the previous owner knew about it. Are you obliged to allow the passage? The answer from the Court of Cassation is clear: yes, if you were aware of it at the time of purchase. But how do you prove such knowledge? That is the crux of the judgment of 16 September 2009 (No. 08-16.499), which sets out the three ways in which easements can be enforced against a buyer.

This decision directly concerns owners, buyers and property professionals in the Alpes-Maritimes, where rights of way are common due to the terrain and fragmented land parcels. In Nice as in Grasse, many landlocked plots benefit from a right of way over a neighbour's land. But what happens when this right is not formalised in the deed of sale? Case law comes to the aid of the beneficiary, provided the buyer acted in bad faith.

In this article, I will tell the story behind this decision, break down the judges' reasoning, and above all give you practical tips to avoid nasty surprises. Because, as I often tell my clients: prevention is better than litigation.

The facts: a story that happens every day

Mr X, owner of a plot of land in Le Cannet, decides to subdivide his plot. He creates several plots and, to allow one of them to access the public highway, he establishes a right of way over another plot. The deeds of sale for the plots are signed, but the easement is not registered with the land registry (land publicity service). A few years later, the burdened plot (the one subject to the easement) is resold to Mr Y. The latter finds no mention of the easement in his acquisition deed. He builds a fence that blocks the passage. The owner of the benefiting plot (the one entitled to pass) sues him to have the easement recognised.

Before the Court of Appeal, Mr Y argues that he knew nothing of this easement and that it is not enforceable against him (cannot be invoked against him). He contends that the easement was not registered, and that his deed of sale makes no mention of it. But the Court of Appeal dismisses his claim: it finds that he was aware of the easement at the time of acquisition. How does it know? Because Mr Y had visited the plot several times before the purchase and had seen the passage used by the neighbour. Moreover, the seller had verbally told him about the existence of a right of way. Mr Y appeals to the Court of Cassation, arguing that the Court of Appeal did not establish that he knew the precise location and terms of use of the easement.

The Court of Cassation dismisses his appeal. It recalls that an easement is enforceable against the buyer of the burdened property if it has been registered, or if his acquisition deed mentions it, or if he was aware of its existence at the time of acquisition. And above all, it specifies that the trial judges (the magistrates of the Court of Appeal) have full discretion to assess the buyer's knowledge. In other words, it is for them to decide, based on the evidence provided, whether the buyer knew or not. And their decision cannot be challenged by the Court of Cassation, except for an error of law.

The court's reasoning — broken down

The legal basis of this decision is Article 1240 of the Civil Code (formerly 1382), which provides that 'any act of a person which causes damage to another obliges the person by whose fault it occurred to make reparation'. In short, if the buyer knew of the easement and contests it, he acts in bad faith and incurs liability. But the Court of Cassation also relies on the land registration rules arising from the Decree of 4 January 1955. This text requires easements to be registered in order to be enforceable against third parties. However, it provides an exception: the buyer's personal knowledge may substitute for the lack of registration.

In this case, the question was: did the Court of Appeal sufficiently justify its decision by stating that Mr Y knew of the existence of the easement? The appeal criticised the judges for not specifying how Mr Y knew the location and terms of use. But the Court of Cassation considers that mere knowledge of the existence of the easement is sufficient, without the need to detail its exact location or terms. In other words, if the buyer knew that a right of way existed, it does not matter that he was unaware of its precise route.

This reasoning is important because it facilitates proof for the beneficiary of the easement. He does not have to show that the buyer knew all the details; it is enough to prove that he knew, in a general way, that his land was burdened. undefined, I have come across cases where neighbours tolerated a passage for years, and the buyer could not claim to be unaware of it. However, note: the knowledge must be actual, not merely presumed. The judges examine the circumstances: visits to the property, statements by the seller, apparent use, etc.

What few people know is that this solution is not new. The Court of Cassation had already ruled in 1998 (Civ. 3e, 10 June 1998, No. 96-17.625) that the buyer's knowledge could substitute for the lack of registration. The 2009 decision confirms this case law and clarifies the required degree of knowledge.

What this means for you — in practice

For buyers: if you are buying a property, do not rely solely on the notarial deed. Ask the neighbours, visit the property several times, and request a certificate from the seller regarding the absence of unregistered easements. If you discover after the sale that an easement exists and you contest it, you risk losing the case if the beneficiary proves that you were aware of it. Concrete example: in Nice, a buyer of a flat with a terrace had seen the neighbour regularly pass by to maintain his facade. He could not claim to be unaware of the right of access for repairs (right to enter the property to carry out works).

For benefiting owners: if you have an unregistered right of way, you can still enforce it against the buyer if you prove he was aware of it. Remember to keep evidence: photos, witness statements, letters. But it is safer to register the easement, even after the fact. The cost is modest (about €200 to €400 with a notary) and saves you years of litigation.

For sellers: if you sell a property burdened by an easement, you must mention it in the deed of sale, otherwise you risk liability. The buyer could sue you for failure to disclose (latent defect or fraud). undefined, I have seen a seller ordered to pay €15,000 in damages for concealing a right of way.

In summary, this decision reminds you that the absence of formality does not erase real rights. Good faith and personal knowledge are key elements in easement disputes.

Four tips to avoid this type of dispute

• Before buying, conduct a neighbourhood inquiry. Talk to the neighbours, especially those who might benefit from an easement. Ask them if they use a passage over the property you are considering. A simple conversation can reveal the existence of an informal right.
• Demand a statement of easements. In the preliminary contract, include a condition precedent (a clause that cancels the sale if a condition is not met) regarding the absence of undeclared easements. The seller must provide a sworn statement.
• Check the cadastral plan and previous deeds. The cadastre does not mention easements, but previous deeds of sale may reveal them. Your notary can consult the land register to check for registered easements.
• If in doubt, take out legal protection insurance. This will cover legal fees in case of a dispute. Some policies include legal assistance for easement issues.

Further reading: related case law and developments

This decision is part of a consistent line of authority from the Third Civil Chamber of the Court of Cassation. Notable is the judgment of 10 June 1998 (No. 96-17.625) which had already established the principle of enforceability through personal knowledge. More recently, the Court of Cassation clarified that the knowledge must exist prior to the acquisition (Civ. 3e, 12 July 2018, No. 17-21.895). It also held that mere mention in an unregistered earlier deed is not enough to establish knowledge (Civ. 3e, 4 May 2017, No. 16-13.390).

The current trend is therefore to protect the beneficiary of the easement, while requiring concrete proof of the buyer's knowledge. The trial judges have broad discretion. This means that each case is unique and the outcome depends on the facts. In the Alpes-Maritimes, the courts are particularly vigilant regarding rights of way, given the configuration of the territory.

For the future, one can expect case law to maintain this solution, or even extend it to apparent easements (those that are visible, such as a door or a pipe). Indeed, if a buyer sees a pipe crossing his land, he cannot claim to be unaware of the easement. This reinforces the importance of visual inspection before purchase.

Key takeaways

FAQ:

• Can an unregistered easement be enforced against me if I was not aware? No, unless you were aware of it at the time of purchase. Knowledge can be proved by witness statements, photos, or apparent use.
• What should I do if I discover an easement after buying? Check whether it was mentioned in the deed or registered. If not, you can contest it, but beware of proving your ignorance. Consult a lawyer.
• What are the risks if I block a passage? The beneficiary can sue you for recognition of the easement and damages. You may be forced to restore the passage and pay costs.
• Can I regularise an unregistered easement? Yes, by signing a notarial deed recognising the easement and registering it with the land registry. This secures your right.
• How much does a court case for an easement cost? Between €3,000 and €10,000 depending on complexity, plus legal fees. Mediation may be cheaper.

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