Right of Way: Beware of Unpublished Waiver – An Omission That Costs Dear

Imagine the scene: you have just bought a house in Mimizan, with a lovely garden overlooking the forest. One day, your new neighbour turns up and announces that he has the right to cross your land to access his property. “No problem,” you tell him, “the previous owner assured me that this right had been abandoned in writing.” Yet, a few months later, you receive a court summons: the neighbour claims free passage, and you must demolish the wall you have built. How is this possible?

The answer lies in one word: registration. A simple agreement between owners is not enough to extinguish a right of way. The Court of Cassation, in a decision of 5 February 1970, ruled: any waiver of an easement, whether contractual or legal, must be registered at the land registry (now the land publicity service) to be enforceable against third parties. In other words, if the waiver is not recorded, it is worthless towards future purchasers or creditors.

This decision, handed down more than fifty years ago, remains highly relevant today. It applies to rights of way as well as easements of view, drainage, or even scaffolding rights. Owners, buyers, notaries: all must know this rule or risk finding themselves in a legal deadlock. In this article, I explain everything, with concrete examples from my practice in the Landes (Mimizan, Soustons) and elsewhere.

The Facts: A Story That Happens Every Day

In this case, two neighbouring properties were linked by a right of way established to allow the owner of the dominant tenement (the one benefiting from the passage) to access the public highway. The servient tenement (the one bearing the easement) belonged to a certain Mrs X, while the dominant tenement was owned by Mr Y. One day, for personal reasons, Mrs X decided to enclose her land by building a rubble stone wall on the boundary between the two properties, which blocked the passage. Mr Y, unhappy, then sued Mrs X to restore free passage and demolish the wall.

In court, Mrs X produced a private deed dated 8 April 1958, by which Mr Y's predecessor in title (the previous owner of the dominant tenement) had abandoned all rights of way over his land. According to her, this waiver extinguished the easement, and she was therefore free to build her wall. But Mr Y contested the validity of this waiver, arguing that it had never been registered at the land registry and therefore could not be enforced against him.

The case was brought before the Court of Cassation, which had to decide a crucial question: must a waiver of an easement be registered to be valid? The judges answered in the affirmative, based on Article 28, first paragraph, of the Decree of 4 January 1955 (now codified in Article 28 of Decree No. 55-22). This text requires the registration of any deed transferring or creating real property rights inter vivos. Now, a waiver of an easement extinguishes a real property right: it must therefore be registered. In this case, the 1958 waiver not having been registered, it was unenforceable against Mr Y, who could demand the maintenance of the passage.

The Court's Reasoning – Analysed

The Court of Cassation issued a landmark decision, i.e., a ruling that is authoritative for all similar cases. Its reasoning is simple but far-reaching. It starts from Article 28 of the Decree of 4 January 1955, which lists the deeds subject to land registration. Among them are “all deeds transferring or creating real property rights inter vivos”. The question is: is a waiver of an easement a “transfer” or “creation” of a real right?

The Court answers yes, but indirectly: the waiver extinguishes a real right, which is the opposite of a creation, but the effect on the real right is similar. Indeed, the extinction of an easement modifies the scope of the right of ownership: the servient tenement regains its full freedom, while the dominant tenement loses an advantage. This modification, to be enforceable against third parties (notably successive purchasers), must be brought to public knowledge by registration. In short, if you waive an easement without registering it, your waiver binds only you and your immediate neighbour; it will not bind subsequent owners.

Note, however: the decision specifies that this registration requirement applies to all easements, whether contractual (created by contract) or legal (created by law, such as passage in case of landlocked property), including those known as “by operation of law on division of land” (created by a single owner who divided his land). What few people know is that even a legal easement, such as the right of way for a landlocked property, may be the subject of a contractual waiver between owners. But this waiver, if not registered, remains ineffective against third parties.

The parties' arguments were classic: on one side, Mrs X argued that the waiver was a valid legal act in itself, and that registration was merely an ancillary formality. On the other side, Mr Y argued that without registration, the waiver was not enforceable against him. The Court followed the latter view, emphasising the legal certainty of property transactions. Today, this solution is unanimously accepted by case law and notarial practice.

What This Means for You – In Practice

So, what are the practical implications of this decision? They are numerous and vary depending on your situation.

If you are the owner of a servient tenement (the one bearing the easement) and wish to free yourself from this burden, you cannot simply rely on a verbal agreement or a signed paper between you and your neighbour. You must have a notarial deed of waiver drawn up (at a notary's office) and have it registered with the land publicity service. The cost? Allow about €800 to €1,500 for notary and registration fees, depending on complexity. But this investment will save you years of litigation. I have seen cases where an owner in Soustons signed a private waiver in 2005 and found himself sued in 2020 by the purchaser of the dominant tenement, who knew nothing of this agreement. Without registration, the waiver was unenforceable, and the owner had not only to restore the passage but also to pay damages for having built a gate.

If you are a purchaser of a property, be vigilant: when buying, your notary must check the state of easements. But if a waiver has been signed without being registered, it will not appear in the documents. You could therefore buy a property that you believe free of any easement, when in fact it still exists. In such a case, you are entitled to require the seller to regularise the situation, or to claim a reduction in price. If you are yourself a seller, do not forget to mention any unregistered waiver, on pain of liability for fraud or latent defect.

If you are a tenant, the issue arises less directly, because easements are real rights attached to the land, not to the tenant. But if you rent a property burdened by an easement, you must respect the neighbour's right of way. If the landlord assures you that the easement has been removed, ask him to provide proof of registration. Failing that, be wary: the neighbour could demand passage, and you would be obliged to let him through.

For co-owners, easements may affect common or private parts. A waiver must be decided at a general meeting if it affects common parts, and registered under the same conditions.

Four Tips to Avoid This Type of Dispute

• Always register any waiver of an easement. Whether in a transaction or an amicable agreement, never neglect this formality. Go to a notary who will handle the registration with the land publicity service. The cost is minimal compared to the risks of litigation.
• Require a statement of easements before buying. Your notary will give you a document called “statement of easements” or “extract from the land register”. Check that no easement is mentioned. If an easement appears, ask whether a waiver has been registered. If in doubt, have a search carried out with the land publicity service.
• Keep all documents relating to your property safe. Including waivers, even unregistered. In case of dispute, they may serve as evidence between the initial parties, even if unenforceable against third parties. For example, if you are the owner who waived, you may be able to claim against the other party if they later claim the passage.
• In case of conflict, consult a solicitor specialising in property law. Do not try to resolve an easement dispute alone. The rules are technical, and a mistake can cost you dearly. A solicitor can check whether the waiver has been registered and advise you on the strategy to adopt.

Further Reading: Related Case Law and Developments

The 1970 decision is part of a consistent line of the Court of Cassation. As early as 1965, a similar ruling was made concerning an easement of view (Civ. 3e, 18 November 1965). The Court had already affirmed that a waiver of an easement must be registered to be enforceable against third parties. The 1970 decision merely confirms and extends this principle to all easements, whatever their origin.

Since then, case law has not changed. In 2004, the Court of Cassation even specified that a waiver of a legal easement of passage for a landlocked property must be registered (Civ. 3e, 24 March 2004, No. 02-19.271). Thus, even if the easement is created by law (for example, a landlocked plot), a contractual waiver between the owners remains subject to registration.

This position is logical: land registration aims to ensure the security of transactions. Without it, purchasers could not know the exact extent of real rights over a property. The trend is therefore towards strengthening the registration requirement, particularly since the reform of property law introduced by the Act of 17 June 2008 (which modified the rules on acquisitive prescription). Today, the courts are very strict: any deed modifying a real property right must be registered, on pain of unenforceability.

What You Must Absolutely Remember

FAQ:

• Q: Can I waive a right of way verbally? A: No, the waiver must be in writing and registered. A verbal agreement is worthless.
• Q: What should I do if I have signed an unregistered waiver? A: You must regularise as soon as possible by having the deed registered with a notary. If a conflict has already arisen, consult a solicitor.
• Q: Are there deadlines for registering a waiver? A: There is no legal deadline, but it is advisable to do so immediately to avoid any challenge. Registration has retroactive effect to the date of the deed.
• Q: Is the cost of registration high? A: Allow about €200 to €400 for registration fees, plus the notary's fees (about €500 to €1,000). This is a modest investment to secure your property rights.
• Q: Does this rule apply to legal easements like passage for a landlocked property? A: Yes, absolutely. The 1970 decision and subsequent case law have confirmed this. Any waiver, even of a legal easement, must be registered.

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

In summary: remember that waiving an easement is a serious act, requiring the involvement of a notary and registration. Do not let a simple piece of paper compromise the peace of your property. If you are in doubt, do not hesitate to consult me.

Are you in a similar situation? A 30-minute initial consultation with Maître Zakine (€45) may save you months of litigation — and often much more. Book an appointment →