Right of way and third-party opposition: protecting your right of access in a condominium

Imagine: you own a flat in Vallauris, in a small condominium. Your only access to the street is via a driveway that crosses the neighbour's land. You have always used it without any problem. But one day, the condominium association of your building sues this neighbour to have it declared that your landlocked situation (a plot with no direct access to the public highway) has ceased, and therefore that the right of way (right to pass over another's land) is no longer necessary. You learn of the decision too late: the court has already removed your right of way. What can you do?

This is the question that every owner whose access depends on a right of way asks themselves. And the answer was given by the French Supreme Court in 1993 in a decision that remains a reference for all condominium and easement disputes. In clear terms, the High Court ruled that a co-owner of a unit benefiting from a right of access to two streets can bring a third-party opposition (a remedy for a person who was not a party to the proceedings) against the judgment that removes the right of way. Why? Because he has a right distinct from that of the condominium.

But what does this mean exactly for you, an owner in Mougins or elsewhere? A lot. Let us decode this decision, its facts, its reasoning, and above all what it implies concretely in your daily life.

The facts: a story like many that happen every day

Let's go back to 1959. In Vallauris, an owner sells a plot of land dividing it into several lots. One of the lots, No. 1, is sold to a property investment company (SCI) Saint-Charles. But this lot is landlocked: it has no direct access to the public highway. To remedy this, the deed of sale provides for a right of way over another lot, No. 2, which still belongs to the seller. Later, the condominium is formed, and lot No. 1 is resold to an individual, Mr. X. Lot No. 2, meanwhile, is acquired by another neighbouring condominium.

In 1982, the condominium association of the neighbouring building (owner of lot No. 2) sues the condominium association of Mr. X to have it declared that the landlocked situation has ceased. Why? Because lot No. 1 now benefits from access to two different streets — in theory, no need to pass over lot No. 2. The High Court of Grasse rules in favour of the claimant association in 1988: the right of way is extinguished. Mr. X, who was not a party to that trial, learns of the decision and brings a third-party opposition. He argues that his lot still benefits from a right of access to both streets, and that the removal of the right of way causes him harm (nuisance, loss of value). The Court of Appeal of Aix-en-Provence declares his application admissible. The neighbouring association appeals to the Supreme Court.

What few people know is that the right of access to two streets does not necessarily prevent the landlocked situation: if one of the accesses is impracticable or insufficient, the right of way may continue to exist. In my practice, I have come across cases where a secondary access was too narrow or closed by a gate, making the main passage indispensable.

The reasoning of the court — explained

The French Supreme Court had to answer a simple question: can a co-owner challenge a judgment that removes a right of way, even though the condominium association was a party to the proceedings? The answer is yes, but on one condition: that the co-owner has an interest distinct from that of the condominium.

In this case, the Court of Appeal had found that Mr. X, as owner of lot No. 1, benefited from a right of access to two streets. This right was personal to his lot, not to the condominium. However, the contested judgment had found the cessation of the landlocked situation and therefore of the right of way, which deprived Mr. X of a direct access that he considered necessary. The Supreme Court validates this reasoning: the co-owner has a distinct right to maintain the right of way. In other words, the defence of this right cannot be ensured solely by the condominium association, which represents the collective interest, not the individual interests of each unit.

Be careful, however: third-party opposition is only admissible if the judgment prejudices the rights of the person bringing it. Here, the prejudice was obvious: without the right of way, Mr. X lost an access. The Court recalls that Article 583 of the Code of Civil Procedure (which governs third-party opposition) requires a present and actual interest. In clear terms, it is not enough to say 'I am a co-owner'; you must demonstrate that your personal rights are affected.

This decision is a confirmation of earlier case law: courts protect real rights (such as an easement) attached to a unit, even if the condominium association has already pleaded. This is a safeguard for co-owners who might be 'betrayed' by a decision of the association.

What this changes for you — concretely

If you are the owner of a unit in a condominium and your access depends on a right of way, this decision gives you a procedural weapon: you can act in your own name if the condominium association abandons the right of way. For example, in Mougins, an owner of a unit with a right of way over a neighbour's path can bring a third-party opposition if the association accepts its removal, even if the unit has a second access (for example, a narrow alley). The court will have to verify whether that access is sufficient.

For buyers: before purchasing a property in a condominium, check whether access is secured by a right of way. If so, ask the seller whether the condominium association has already been involved in a dispute on this point. A judgment that went unnoticed could deprive you of your passage. If you are a tenant, you do not have the right to act directly, but your landlord (owner) can do so. Report any access problem to him.

If you are a co-owner and your condominium association announces that it is giving up a right of way, do not remain passive. You have a distinct interest in preserving your access. Demand that the association inform you and, if necessary, consult a lawyer to bring a third-party opposition. The time limits are strict: third-party opposition must be brought within two months of service of the judgment if you were not a party, or within two months of learning of it if you were not notified (Article 586 of the Code of Civil Procedure).

Four tips to avoid this type of dispute

• Check your title deeds: Before any purchase, have the notarial deed examined by a lawyer specialising in property law. Ensure that the right of way is properly mentioned and that it is still necessary. In Vallauris, a deed from 1959 may contain forgotten clauses.
• Attend general meetings: The condominium association may decide whether to bring legal proceedings. If a point concerns access to your unit, attend the AGM and have your reservations recorded in the minutes. You can then challenge a decision that harms you.
• Keep evidence of your use: Photos, neighbour statements, maintenance invoices for the passage... Any document showing that you have used the right of way for a long time can be useful to demonstrate your right and your interest in keeping it.
• Consult a lawyer at the first threat: If your neighbour or the condominium association mentions a possible removal of the right of way, do not delay. A quick consultation (30 minutes) can guide you on the steps to take and the deadlines to meet. In Mougins, I have seen cases where a late reaction cost years of proceedings.

Further reading: related case law and developments

This 1993 decision is part of a line of protection of co-owners' individual rights. It has been confirmed by other rulings, such as the French Supreme Court decision of 15 June 2005 (No. 04-10.123) which held that a co-owner can bring proceedings to have a right of way recognised even if the condominium association opposes it. Conversely, a decision of 12 July 2018 (No. 17-18.576) recalled that third-party opposition is not available if the co-owner was represented by the condominium association in the initial proceedings (case of the ut singuli action).

The current trend in the courts is to strengthen the information of co-owners: the managing agent must warn them of any legal action affecting their real rights. Failing that, third-party opposition is more easily admissible. For the future, the ALUR law of 2014 has increased the powers of the managing agent, but also the obligations of transparency. Stay vigilant.

Frequently asked questions

Can I bring a third-party opposition if I am a tenant?
No, only the owner (landlord) can do so, because the right of way is a real right attached to the unit. As a tenant, you only have a personal right. Report the problem to your landlord.

What are the time limits for bringing a third-party opposition?
You have two months from the service of the judgment if you were not a party, or two months from the day you learned of it if you were not notified (Article 586 of the Code of Civil Procedure). After this time, the judgment becomes final.

How much does a third-party opposition procedure cost?
Lawyer fees vary, but an initial 30-minute consultation at €45 can assess your situation. Then, a simple procedure can cost between €1,500 and €3,000 excluding court costs (bailiff, expert). Compare this with the loss of value of the property if the right of way disappears.

What if my condominium association refuses to act?
You can call an extraordinary general meeting to put the question of the right of way on the agenda. If the association persists, you can act alone in court, in your own name, on the basis of your distinct right.

Does this decision apply to rights of view or drainage?
Yes, the principle is the same: any co-owner whose real right (easement) is threatened by a court decision can bring a third-party opposition, provided he demonstrates a distinct interest.

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 →