Right of way easement: impossible to modify the route by thirty-year prescription

Picture the scene: you own a lovely house in Cagnes-sur-Mer, with direct access to the road. For as long as anyone can remember, you have crossed a small part of your neighbour's land to get to the garage. It is convenient, quick, and no one has objected for thirty years. But one day, the neighbour changes his attitude: he puts up a gate and forbids you to pass. You say to yourself: 'I have an acquired right through use, don't I?' Not so fast. The Court of Cassation, in a judgment of 7 March 1984, ruled: the owner of a tenement benefiting from a conventional right of way (i.e., provided for in a notarial deed) cannot, by thirty years' possession, appropriate a different route from that originally agreed. In other words, long use does not create a new right.

This decision, often overlooked, is nevertheless crucial for all those who live in situations of shared ownership or passage. Whether you are an owner in Grasse, a tenant in the Alpes-Maritimes, or a property professional, understanding this rule can save you a lot of trouble. Because if you use a passage without a written right, or if you use it differently from what is provided, you risk being left without a remedy.

But what exactly does this change? And how should you react if you are in this situation? Let us dive into the case decided by the Court of Cassation.

The facts: a story that happens every day

Miss Y. is the owner of a plot of land, called the 'dominant tenement' (the one benefiting from the easement), located a few kilometres from Rennes. Her neighbour, Mr X., owner of the 'servient tenement' (the one bearing the easement), has a notarial deed dating back several decades. This deed provides for a right of way on foot, exclusively on foot, along a clearly defined path. But for over thirty years, Miss Y. has been using not the intended path, but another passage, wider and accessible by car. No one objected... until the day Mr X., weary or wishing to reclaim the use of his land, decided to block this new passage. Miss Y. sued him, arguing that she had acquired by thirty-year prescription (continuous and unchallenged possession for thirty years) the right to use this new route.

The first instance court found in her favour. Mr X. appealed. The Rennes Court of Appeal, in a judgment of 7 July 1982, reversed the decision: it dismissed Miss Y.'s claim on the ground that discontinuous easements (such as a right of way, which requires a human act) cannot be acquired by prescription. Miss Y. appealed to the Court of Cassation. The Court of Cassation, on 7 March 1984, dismissed her appeal and upheld the appeal judgment. The central question: can a conventional easement have its route modified by thirty-year possession? The answer is no.

The reasoning of the court — broken down

The Court of Cassation relies on an old principle of French law, codified in Article 690 of the Civil Code (now Article 690-1): 'Continuous and apparent easements are acquired by title, or by thirty years' possession.' But note: discontinuous easements, such as a right of way, can only be acquired by title, i.e., by a written deed (notarial or private). Possession, even prolonged, is not enough to create a right of way. This is known as the principle of imprescriptibility of discontinuous easements.

In clear terms, even if you use a path for thirty years, you never acquire the right of way if it is not provided for in a deed. And if a deed exists, you cannot, by use, extend that right to another route or another type of passage (e.g., from pedestrian to vehicular). The Court of Appeal was therefore correct: 'use for more than thirty years of a passage over another tenement cannot acquire the right of way unless it is conventionally established in its route.' However, in this case, the conventional route was strictly defined. Miss Y. could not claim to have prescribed a different route.

What few people know is that the Court of Cassation clearly distinguishes between the easement itself (the right) and its route (the path). If the easement is discontinuous, the route can only be modified by a new agreement between the parties or by a court decision in the case of an enclave (legal easement). Possession cannot under any circumstances modify the route of a conventional easement. This is a consistent position of the case law, confirmed by subsequent decisions.

What this means for you — practically

This decision has direct consequences for all property stakeholders. For the owner of the servient tenement (the one bearing the passage), it is a protection: you can challenge any use that goes beyond the scope of the deed, even if that use has lasted for decades. For the owner of the dominant tenement, it is a warning: do not rely on tolerance or habit. If you use a passage not provided for, you are in an irregular situation and may be forced to stop.

Let us take a concrete example in Grasse: you buy a villa with a right of way to access a car park. The deed mentions a path 3 metres wide. But the former owner used a path 5 metres wide for forty years. Do you think you are entitled to the wide path? No. The seller cannot transfer more than he had, and prescription has not operated. You will have to make do with 3 metres, or negotiate with the neighbour.

For a tenant, the situation is similar: you cannot claim an extended use. For a buyer, it is essential to check the easement deed and not rely on appearances. undefined, I have come across cases where owners had built a gate in a different place from that provided, thinking that time gave them the right. Fatal error: the judge ordered the reinstatement of the premises, with considerable costs.

If you are in this situation, you must: 1) consult your property deed to know the exact route of the easement; 2) stop any non-compliant use; 3) attempt an amicable negotiation to modify the route (with a notarial deed); 4) failing that, go to court to assert your rights if you are landlocked (legal easement).

However, note: the limitation periods for legal action vary. In matters of easements, the action for recovery by the owner of the servient tenement is barred after thirty years from the act of interference. But if you are challenging a legal easement, the rules differ. It is better to act promptly.

Four tips to avoid this type of dispute

• Check your property deed: Before buying or building, read the easement clauses carefully. The notary should point them out to you. If a passage is used differently, ask for regularisation.
• Do not tolerate non-compliant use: If your neighbour uses a wider path or drives a car when the deed provides for pedestrian passage, express your opposition in writing (registered letter). Tolerance can create an appearance of right, even if prescription is excluded.
• Have the premises inspected: In case of doubt, call a bailiff to draw up a report of the use. This will serve you in the event of a dispute to prove the state of the premises.
• Negotiate an amendment: If you wish to modify the route of the easement, it is always possible to agree on a new route with the owner of the servient tenement, by notarial deed. This secures your situation and avoids lawsuits.

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Going deeper: related case law and developments

The position of the Court of Cassation has remained constant since the 1984 decision. One can cite a judgment of 3 May 1989 (No. 87-18.890) which recalls that acquisitive prescription of a discontinuous easement is impossible, even if the use is old and unchallenged. More recently, a judgment of 12 September 2019 (No. 18-18.789) confirmed that encroachment on the route of a conventional easement cannot be regularised by possession.

What this means for the future: the courts are particularly meticulous about respecting written deeds. The trend is towards protecting property rights against de facto uses. For owners, it is therefore essential to formalise any agreement in writing, on pain of being met with the absence of a title. Property professionals must be vigilant during transactions: an easement not conforming to use can be a source of litigation.

In practice: what to do

Question: I have used a passage for 40 years, but it is not provided for in my deed. Can I claim it?
Answer: No, because rights of way are discontinuous and cannot be acquired by prescription. You cannot rely on prolonged use.

Question: My neighbour has modified the route of the easement without my consent. What should I do?
Answer: You can ask him to stop, by registered letter. If he persists, go to the judicial court to stop the interference and obtain damages.

Question: Can I obtain a legal easement if I am landlocked?
Answer: Yes, if your tenement is landlocked (without sufficient access to the public highway), you can apply to the court for a passage, based on Articles 682 et seq. of the Civil Code. But the judge will set the shortest and least damaging route.

Question: What is the cost of legal action for an easement?
Answer: Legal fees vary between €1,500 and €5,000 depending on complexity, plus expert and procedural costs. A preliminary consultation can assess your chances.

Question: Can I modify the route of a conventional easement by amicable agreement?
Answer: Yes, with the agreement of both owners, you can execute a notarial deed modifying the route. This is the simplest and least expensive solution.

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 →