Right of Way Easement: A Mere Mention in the Deed is Not Enough to Create Your Right

Imagine you own a beautiful house in Tarnos, with a garden that opens onto a private lane. For years, you have used this lane to access your garage. Your neighbours, the owners of the land it crosses, have never protested. You sell your house, and in the notarial deed of sale (authentic deed), it is mentioned that the property benefits from a right of way easement (a real right burdening one property for the benefit of another) over this lane. Everything seems perfect, until the day the new owners of the neighbouring land decide to block your access. What can you do?

This situation, much more common than one might think in our region of the Landes, raises a fundamental question: does a mere mention in a notarial deed suffice to create an easement? This is precisely what the Court of Cassation had to decide in this ruling of 12 April 2012. But what does this actually change for you, as a property owner, tenant, or real estate professional?

The answer is clear and unequivocal: no, a mere mention is not enough. The highest court forcefully reminds that only the existence of a constitutive title (a deed creating the easement) can establish a right of way, unless it has been acquired by prescription (acquisition through the passage of time). This decision, rendered by the Second Civil Chamber, clarifies a situation that regularly generates costly and lengthy disputes.

The Facts: A Story as Common as Any

Take the example of Mr. and Mrs. Dubois, owners of a house in Capbreton since 1998. Their property, located at the back of the plot, is only accessible via a lane crossing their neighbours' land, the Martins. Since their purchase, the Dubois have regularly used this lane to access their garage. In 2005, they decide to sell their house to Mr. and Mrs. Lambert.

During the sale, the authentic deed (a deed received by a public officer such as a notary) drawn up by the notary expressly mentions that the property being sold benefits from a right of way easement over the Martins' lane. This mention also appears in the Martins' deed of sale when they acquired their land a few years earlier. Everyone seems to agree on paper.

Years pass, and the Lamberts use the lane without issue. Until 2010, when the Martins, after selling their land to a property developer, see the latter decide to fence off the lane to build a housing estate. No more access for the Lamberts! The latter bring the matter before the Tribunal d'Instance of Mont-de-Marsan, arguing that the easement is established by the concordant mention in the authentic deeds.

The court, then the Court of Appeal of Pau, rule in their favour, considering that these multiple and concordant mentions constitute a valid constitutive title. But the new owners, supported by the developer, disagree and lodge an appeal to the Court of Cassation. This is where the case takes a decisive turn.

The Court's Reasoning — Analysed

The Court of Cassation, in its judgment of 12 April 2012, quashes the ruling of the Court of Appeal of Pau. Its reasoning is based on a strict application of Article 695 of the Civil Code. But what exactly does this article say?

Article 695 of the Civil Code provides that "continuous and apparent easements are acquired by title (a deed creating the right) or by possession of thirty years." In other words, for an easement to exist legally, there must be either a constitutive title (a deed that expressly creates it) or thirty years' possession (continuous use for 30 years). There is no third way.

In this case, the Court of Appeal had considered that the concordant mentions in the authentic deeds of the different parties constituted a sufficient title. The Court of Cassation categorically rejects this interpretation. For the judges, a mere mention of the existence of an easement, even repeated in several deeds, can in no way substitute for the constitutive title required by law.

In plain terms, what the Court says is: it does not matter that the mention appears in the deed of sale of the dominant tenement (the property benefiting from the easement) and in that of the servient tenement (the property burdened by the easement). It does not matter that it is drafted in a concordant manner. A mention is merely a statement, not a creation. It may possibly constitute a recognitive title (a deed recognising an already existing easement), but never a constitutive title.

What few people know is that this decision is part of a consistent line of case law. The Court here recalls a fundamental principle of easement law: their creation is subject to strict conditions to protect property rights. An owner cannot be deprived of part of their rights (here, the free disposal of their land) by mere mentions, without their clear and express consent.

What This Means for You — Practically

If you are a landlord in Mont-de-Marsan or the surrounding area, this decision has direct implications. Imagine you rent out a house with access via a private path. If this access is not based on a solid constitutive title, your tenant could be denied access overnight. You would then be in breach of the covenant for quiet enjoyment, with risks of rent reduction or even termination of the lease. undefined, I have handled cases where landlords had to compensate their tenants to the tune of 3 to 6 months' rent for a similar problem.

For purchasers, vigilance is key. If you buy a property in Capbreton with an easement mentioned in the deed, ask yourself this question: where is the constitutive title? A mere mention will not protect you. Practically, before signing at the notary's, demand the production of the deed creating the easement. Otherwise, you risk buying a property whose access could be challenged. I have seen purchasers lose up to 20% of their property's value because the main access turned out to be contestable.

Co-owners are not spared either. In developments with common areas, rights of way are frequent. Again, check that the co-ownership regulations or a separate deed properly create these easements. A mere mention in the minutes of a general meeting will not suffice in case of dispute.

How to react if you find yourself in this situation? First step: do not panic. Second step: have a precise assessment of your situation drawn up. Third step: depending on the case, either regularise by having a notarial deed creating the easement (with the neighbour's agreement), or initiate an action for prescription if you have used the passage for more than 30 years.

Four Tips to Avoid This Type of Dispute

• Before any purchase, systematically demand the communication of the constitutive title for all mentioned easements. Do not settle for mentions in the deed of sale or the technical survey.
• If you create an easement (for example, to give a neighbour access), have a specific notarial deed drawn up. This deed should specify the location, width, maintenance arrangements and, if applicable, a financial consideration. Expect to pay between €1,500 and €3,000 for such a deed, but it is an investment that avoids disputes costing much more.
• For existing easements not formalised, regularise as soon as possible. Propose to your neighbour to sign a deed acknowledging the easement. If you have used the passage for a long time, have this usage recorded by a bailiff to start the prescription period running.
• In case of sale, be transparent with the purchaser. If an easement is not perfectly established, state this clearly and propose regularisation solutions. Concealment could engage your liability.

Further Analysis: Related Case Law and Developments

This 2012 decision is part of a consistent jurisprudential line. Already in 1995 (Cass. civ. 3rd, 15 February 1995, No. 93-11.298), the Court of Cassation had recalled that "a discontinuous easement can only be acquired by title." The 2012 decision extends this principle to mentions in deeds, even multiple and concordant ones.

More recently, in a judgment of 9 March 2017 (No. 16-10.305), the Court specified that even a private deed (a deed signed by the parties without a notary) could constitute a constitutive title, provided it expressly creates the easement. The important thing is therefore not the form of the deed, but its content: it must create, not simply mention.

The trend in the courts is clear: they demand maximum legal certainty regarding easements. In a context where land values are rising steadily in our region (up to +8% per year on the Landes coast), the economic stakes are too high to allow for approximation.

For the future, this rigorous case law should encourage notaries and real estate professionals to be more vigilant in drafting deeds. It could also lead to an increase in preventive regularisation actions.

Checklist Before Taking Action

If you use a passage over a neighbour's land:

1. Check for the existence of a constitutive title (notarial deed creating the easement)
2. Failing that, establish how long you have used this passage (thirty-year prescription possible)
3. Document this usage: photos, witness statements, maintenance invoices
4. Consult a specialised lawyer before any contentious action
5. Consider amicable regularisation by notarial deed

If you sell a property with an easement:

1. Gather all constitutive titles
2. Verify their validity and enforceability
3. Clearly inform the purchaser of the situation
4. In case of doubt, propose regularisation before the sale
5. Include accurate information in the preliminary agreement and final deed

Do you find yourself in a similar situation? An initial 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →