Right of Way Easement: Who Must Prove Its Existence When Land Parcels Are Separated?

Imagine you own a beautiful house in Saint-Vincent-de-Tyrosse, with access to your land passing through the neighbouring property. You have been using this passage for years, perhaps even since the property was divided. One day, your neighbour decides to prevent you from using it, by installing a gate or simply forbidding you from passing through. What can you do? On what legal basis can you rely to retain this access?

This situation, much more common than one might think in our region of Les Landes, raises a fundamental question: who must prove the existence of an easement (a real right burdening one property for the benefit of another) when land parcels have been separated? Is it for the party benefiting from the passage to demonstrate their right, or for the party contesting it to prove its non-existence?

The decision of the Court of Cassation of 16 September 2009 provides a clear, yet demanding, answer. It recalls an old rule from the Civil Code, often unknown to property owners, and specifies the conditions of proof. For the property owner who finds themselves in this situation, understanding this case law can make the difference between retaining essential access and becoming landlocked.

The Facts: A Story That Happens Every Day

Mr. Dupont, owner of agricultural land in the Mont-de-Marsan region, historically had access to his plot by passing through Mr. Martin's property. This access was materialised by a dirt track, regularly used for the passage of agricultural machinery. The two parcels of land had previously belonged to the same owner, who had separated them several decades ago.

When Mr. Martin decided to sell part of his land to a property developer, the latter immediately contested Mr. Dupont's right of way. The developer argued that the initial deed of sale, by which the two estates (the land parcels) had been separated, did not mention any easement. He therefore installed a gate, preventing Mr. Dupont from accessing his plot.

Mr. Dupont then initiated legal proceedings, invoking the existence of a discontinuous easement created by the grantor's implied reservation. He maintained that the track constituted an "apparent sign" of an easement, visible and used since the separation of the land parcels. The court of first instance ruled in his favour, considering that prolonged use was sufficient to establish the easement.

But the developer appealed, and then lodged an appeal on points of law. The dispute thus went through several levels of jurisdiction, with twists and turns at each stage. At the heart of the debate: the burden of proof. Who must demonstrate what? The Court of Cassation's answer would clarify an essential rule for thousands of property owners.

The Court's Reasoning — Analysed

The Court of Cassation forcefully recalled a fundamental rule: "It falls to the party invoking the existence of a discontinuous easement created by the grantor's implied reservation to produce the deed by which the separation of the two estates was effected and to establish that it contains no provision contrary to the existence of the easement."

Let's analyse this reasoning point by point. First, the easement in question is a "discontinuous easement" (which requires a current human act to be exercised, such as a passage), as opposed to a continuous easement (which is exercised without human intervention, such as a right to a view). It is created "by the grantor's implied reservation" (established by the sole owner of two properties when separating them, by maintaining between them an apparent state of affairs).

The legal basis is Article 694 of the Civil Code, which states: "Continuous and apparent easements are acquired by title, or by thirty years' possession." But beware: for discontinuous easements, even apparent ones, possession alone is not sufficient. A title (a legal deed) or a grantor's implied reservation is required.

The Court specifies that when the sole owner of two estates separates them, if there exists between them an "apparent sign of an easement" (such as a visible and used track), and if the separation contract contains "no agreement relating to the easement", it is presumed to be maintained. But it is for the party invoking the easement to prove these two elements: the deed of separation AND the absence of a contrary clause.

In this case, the judges considered that Mr. Dupont had not sufficiently established that the deed separating the land parcels did not contain any provision contrary to the easement. In short, it is not enough to show that a track exists and is used; one must also prove that during the initial division, nothing was provided to remove this right of way.

This reasoning represents a confirmation of prior case law, but with increased rigour regarding proof. In other words, the Court reminds us that the presumption of a grantor's implied reservation is not automatic: it must be actively demonstrated by the party relying on it.

What This Means for You — Practically

But what exactly does this change for you, as a property owner, tenant, or real estate professional in the jurisdiction of Mont-de-Marsan? The implications are practical and sometimes costly.

If you are a landlord in Biscarrosse and you lease a property with access passing through a neighbouring plot, this decision directly concerns you. Imagine you lease a villa for €1,200 per month, with private access via a track on the adjacent property. If the neighbour contests this access, you will have to prove not only the existence of the track, but also that the deed separating the land parcels (often decades old) did not contain a clause prohibiting this passage. Without this evidence, you risk seeing the rental value of your property decrease by 15 to 20%, a potential loss of €2,000 to €3,000 per year.

If you are a property purchaser, this decision should encourage caution. When acquiring a house in Saint-Vincent-de-Tyrosse with shared access, require the seller to produce all previous deeds of ownership and personally verify whether any easements are mentioned. undefined, I have encountered cases where purchasers discovered after the purchase that their main access was contestable, forcing them to initiate legal proceedings lasting several years, with legal and expert fees potentially exceeding €10,000.

If you are a co-owner in a housing estate, this decision also affects common areas. An access path between several lots can be considered an easement. In case of conflict between co-owners, the party invoking the right of way will have to prove that the initial division deeds did not exclude it.

For tenants, the situation is different but no less concerning. If your lease mentions an access right that is later contested by a third party, you can require the landlord to guarantee your peaceful enjoyment. But in practice, you risk months of conflict before the situation is clarified.

Four Tips to Avoid This Type of Dispute

• Carefully preserve all deeds of ownership, including the oldest ones. When purchasing a property, require the seller to provide the entire chain of title deeds, going back to the first division of the land parcels if possible. Digitise these documents and keep them in duplicate.
• Have a joint and photographic inventory prepared during any real estate transaction. Precisely document all accesses, paths, and apparent signs of easements. Have this inventory signed by all parties, including the concerned neighbours if possible.
• Consult a surveyor-expert before any land division. If you are considering dividing your property in Mont-de-Marsan or the surrounding area, have a precise plan drawn up explicitly mentioning all existing easements. Include these easements in the deed of sale or gift, to avoid any future ambiguity.
• Act preventively through a notarial deed. If you benefit from an unformalised right of way, propose to your neighbour to sign an easement agreement before a notary. Even if this has a cost (budget €1,500 to €3,000 depending on complexity), it is infinitely cheaper than a lawsuit that can last 3 to 5 years and cost €15,000 or more.

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In-Depth Analysis: Related Case Law and Developments

This 2009 decision is part of a consistent line of case law from the Court of Cassation. Already in 1995 (Cass. 3rd civ., 15 February 1995, no. 93-13.298), the Court had recalled that "the grantor's implied reservation is not presumed". It already required proof of the deed of separation and the absence of a contrary clause.

More recently, in a judgment of 13 January 2021 (Cass. 3rd civ., no. 19-21.418), the Court confirmed this probative rigour. It specified that even when the apparent sign of an easement is indisputable (such as a gate opening onto the neighbouring property), it is always for the party invoking the easement to prove that the division deed did not exclude it.

What few people know is that some lower courts (courts of first instance and courts of appeal) tended to be more flexible, sometimes accepting proof by presumptions or testimonies. The Court of Cassation, through this decision and subsequent ones, has recalled the requirement for formal proof.

The trend is therefore clear: judges require increasingly solid evidence to establish easements by the grantor's implied reservation. In a context where neighbourhood disputes are multiplying, this rigour aims to guarantee the legal security of real estate transactions. But it places a heavy burden of proof on the shoulders of property owners invoking these rights.

In Practice: What to Do

Faced with this reinforced requirement for proof, here is what to do in practice:

1. If you are purchasing a property with access dependent on a neighbouring plot: require production of the initial division deed. Verify that no clause excludes the easement. Explicitly mention the easement in the authentic deed of sale.
2. If you are selling a property burdened by an informal easement: regularise the situation before the sale. Consult a specialised lawyer to establish an easement agreement or, failing that, document by all means the existence and peaceful exercise of the right.
3. If a neighbour contests your right of way: immediately gather all documents in your possession. Consult the land registry, notarial archives, old deeds. Search for written testimonies or old photographs.
4. If you are considering dividing your land: have a precise plan drawn up by a surveyor-expert. Explicitly mention in the deed of sale or gift all existing easements, even informal ones.
5. In case of doubt or emerging conflict: consult without delay a lawyer specialised in real estate law. Early consultation can often avoid a costly and lengthy lawsuit.

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 →