Enforceable Right of Way: Common Seller Binds Successive Owners

You own a house in Bagnols-sur-Cèze, with a lovely garden overlooking a cul-de-sac. To access your garage, you have used for years a small path crossing your neighbour's land. Until one day he puts up a barrier and forbids you passage. 'This right of way does not exist!' he tells you. You search your papers: the deed of sale for your house, signed in 1982, does mention a right of way. But your neighbour's deed, signed in 1985, says nothing. Who is right?

The Court of Cassation decided this question in a judgment of 11 June 1992 (No. 90-16.308), which remains a reference for any dispute over a contractual easement. In short, a property owner may be bound by an easement even if their own title deed does not mention it, provided the deed creating the easement is earlier and the two properties share a common author (the same seller).

In other words, if you buy a piece of land whose seller had already committed to respect easements in favour of the neighbour, you are bound by that commitment. Let's unpack this decision together, its consequences, and how to avoid finding yourself in such a dead end.

The Facts: A Story Like Many Others

Mr. Virapin is the owner of a plot in Bagnols-sur-Cèze. To reach his property, he uses a passage crossing the land of Mr. Y. This passage has existed for a long time: it is mentioned in Mr. Virapin's acquisition deed, dated 25 May 1982. That deed specifies that a right of way burdens the neighbouring land in favour of his property. Mr. Virapin therefore uses this path regularly, without anyone objecting.

But in 1985, the situation becomes tense. Mr. Y, who acquired his land in 1985 (i.e., after Virapin's deed), decides to block the passage. He considers that his deed mentions no easement, and that he therefore does not have to suffer it. Mr. Virapin, deprived of access to his garage, takes the matter to court to have his right recognised.

The first instance court rules in his favour, but Mr. Y appeals. The Court of Appeal examines the deeds: it notes that Virapin's deed (1982) predates Y's (1985), and above all that both deeds come from the same seller. However, in Y's deed, he undertook to 'suffer the past servitudes of any nature'. In other words, the seller had required Y to respect all existing easements, including the one in favour of Virapin. The Court of Appeal deduces that the easement is enforceable against Y. Mr. Y appeals to the Court of Cassation.

The Reasoning of the Court — Explained

The Court of Cassation dismisses Mr. Y's appeal. It validates the lower court's reasoning: since Mr. Y's deed contains a clause by which he undertakes to suffer past servitudes, and Virapin's earlier deed mentions the right of way, this easement is enforceable against him.

The legal basis is Article 686 of the Civil Code (which allows the creation of easements by agreement) combined with the principle that the purchaser of a property is bound by easements established by his predecessor (seller). In plain language: when you buy land, you accept the charges and easements that your seller had already granted, even if they are not repeated in your deed, provided they were validly created before your acquisition.

However, note that the Court insists that the easement must be 'apparent and continuous' to be enforceable without a deed (Article 688 of the Civil Code). But here there is a deed (Virapin's), so its apparent or non-apparent nature is irrelevant. What matters is the date of the deed and the common seller's commitment.

What few people know is that this decision confirms a protective trend towards the dominant property (the one benefiting from the easement). Judges favour established usage, especially when the neighbour's deed contains a general acceptance clause for easements. undefined, I have encountered cases where owners in Alès or Nîmes found themselves blocked because they had neglected to check earlier deeds. Here, the Court reminds that the buyer is deemed to have knowledge of existing easements, even implicit ones.

What This Means for You — In Practice

If you are the owner of the servient tenement (the one suffering the easement): you must check the history of deeds. If your seller signed an earlier deed with a clause accepting easements, you are bound. For example, in Alès, Mr. Dupont acquires a plot in 2020. The deed states 'suffer past servitudes'. His neighbour, Mr. Martin, has a 2015 deed providing for a right of way. Mr. Dupont cannot refuse access, even if his own deed does not list this easement.

If you are the owner of the dominant tenement (the one benefiting from the easement): keep your deed carefully. If your deed is earlier than the neighbour's, and both come from the same seller, you are in a strong position. Conversely, if your deed is later, you cannot enforce the easement against a neighbour who bought before you.

If you are a buyer: before signing, ask your notary to check the deeds of neighbouring properties. A quick glance at the 'easements' section of your deed is not enough. You must also consult earlier deeds of the seller and neighbours. The cost of this check (a few hundred euros) is trivial compared to the cost of a lawsuit.

Four Tips to Avoid This Type of Dispute

• Check the chain of deeds: Before buying, ask your notary to go back at least 30 years. If an earlier deed mentions an easement in favour of a neighbour, you will be informed.
• Insert a warranty clause: In your acquisition deed, require the seller to declare that he has not granted any easement not mentioned. In case of dispute, you can claim against him.
• Act quickly using possessory action: If your neighbour blocks your passage, act within one year. The possessory action (to protect peaceful possession) is swift and effective. Do not delay.
• Keep all title deeds: Preserve the deeds of your predecessors. If you inherit or buy, ask for the full history. A simple notarial deed from 1982 can save you.

Further Analysis: Related Case Law and Developments

This decision is part of a consistent line of the Court of Cassation. As early as 1978 (Civ. 3e, 7 February 1978, No. 76-14.123), it held that a buyer who undertakes to 'suffer past servitudes' is bound to respect those that exist, even non-apparent ones. More recently, in 2015 (Civ. 3e, 4 November 2015, No. 14-22.775), it specified that this clause constitutes recognition and acceptance of easements, without the need to list them.

The trend is therefore towards legal certainty for the dominant property. Courts protect established usage and penalise the buyer who did not check. This means that, in the future, notaries must be doubly vigilant during transfers. If you are a property professional, systematically include this check in your process.

Key Points to Remember

1. An easement can be enforceable without being mentioned in your deed, if the neighbour's deed is earlier and both deeds come from the same seller.

2. The clause 'suffer past servitudes' is a time bomb if you do not check what was passed before.

3. Act quickly: the possessory action is time-barred after one year (Article 2279 of the Civil Code). After that, you risk losing your right.

4. Consult a lawyer lawyer: an easement dispute can last years and cost thousands of euros. A preventive consultation is much cheaper.

FAQ:

Can I enforce an easement if my deed is later than the neighbour's? No, unless the neighbour accepted the easement in his deed (clause accepting past servitudes).

What should I do if my neighbour blocks the passage? Send a formal notice by recorded delivery, then apply to the judicial court in summary proceedings within one year.

What is the cost of an easement lawsuit? Between €3,000 and €10,000 in lawyer's fees, depending on complexity. A judicial expert may be added (€1,500 to €3,000).

Can a simple path create an easement by use? Yes, if the use is continuous and apparent for 30 years (acquisitive prescription). But the 1992 decision concerns contractual easements.

Do I need to register the easement with the land registry? No, the easement exists between the parties even without publicity. However, to be enforceable against third parties, it must be published in the land registry.

Are you 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 →