Right of Way: Thirty Years of Use Sufficient to Fix the Route, Even Without a Title

Imagine: you own a house in Le Bouscat, with a small garden that opens onto a cul-de-sac. For decades, you have crossed the neighbouring plot to reach the road, without anyone contesting it. One day, the new owner of the servient tenement (the plot bearing the right of way) decides to block you, demanding that you take another, shorter route according to him. You wonder: do I have a right of way acquired by use? And if so, can the neighbour impose a change of route?

This is exactly the question that arose in this case decided by the French Supreme Court on 19 March 2003. The judges ruled: when the route (the precise path) of a right of way is determined by continuous and peaceful possession for thirty years, the provisions of Article 684 of the Civil Code, which provide that the right of way must be taken from the shortest side of the landlocked land to the public road, no longer apply. In other words, prolonged use definitively fixes the path.

But what exactly does that change for you, owner or neighbour? Let's delve into the details of this decision which, although handed down more than twenty years ago, remains highly relevant in right of way disputes.

The Facts: A Story That Happens Every Day

The case begins with two neighbouring plots in Talence, in the Gironde department. The A... family own plots no. 733 and 911, while their neighbour, Mr X, owns plots no. 730 and 904. Since 1910, a notarial deed provided for a right of way in favour of plot 733 over plots 730 and 904. But in 1947, a division of plots 733 and 1205 recreated a state of landlocking (a situation where a piece of land has no direct access to the public road). Since then, the owners of plot 733 have continued to use the same right of way, without interruption, for more than thirty years.

The dispute arises when Mr X, the new owner of the servient tenement, contests the right of way. He argues that the right of way should be established according to Article 684 of the Civil Code, i.e., by the shortest possible route, and not by following the old path. The A... family retort that the thirty-year possession (thirty years of continuous use) has fixed the route of the right of way, making Article 684 inapplicable.

The Bordeaux Court of Appeal rules in favour of the A... family, and Mr X appeals to the Supreme Court. The Supreme Court dismisses his appeal, confirming that the determination of the route by thirty years of continuous use prevails over the legal provisions. In short, when use has spoken, the law gives way.

The Reasoning of the Court — Dissected

The core of the reasoning rests on the interpretation of Article 684 of the Civil Code. This provision states that, in the case of landlocking, the right of way must be taken from the shortest side of the landlocked land to the public road. But the Supreme Court recalls a fundamental principle: when the route of the right of way has been determined by continuous, peaceful, public and unequivocal possession for thirty years, such possession constitutes a title (a legal instrument) that supersedes Article 684.

In other words, acquisitive prescription (or usucapion — becoming owner of a right through prolonged use) allows the route of the right of way to be definitively fixed. The judges verified that the conditions for possession were met: continuity (no interruption), peace (no violence), publicity (no secrecy), and unequivocal (no ambiguity as to the intention to possess).

However, note: the decision does not create an automatic right of way. It requires that the possession be established for thirty years, and that the route be precisely determined. In this case, the 1910 deed and the continuous use since 1947 sufficed to characterise the possession. What few people know is that proof of this possession can be provided by any means: witness statements, photos, letters, or old notarial deeds.

The Supreme Court therefore rejected Mr X's argument that Article 684 should apply, because the thirty-year possession had already fixed the right. In other words, use prevails over the default legal rule.

What This Changes for You — Concretely

If you are the owner of the dominant tenement (the one needing the right of way), this decision is good news: if you have used a path for more than thirty years, your neighbour cannot impose a different route, even a shorter one. Concrete example: in Talence, an owner has used a 50-metre path since 1985 to access his house. In 2023, the neighbour wants to make him use a 30-metre path. Thanks to this case law, the owner can keep his historic route.

For owners of the servient tenement (those bearing the right of way), be vigilant: if you have tolerated a right of way for more than thirty years, you may no longer be able to change its route. In my practice, I have encountered cases where owners, after inheriting land, wanted to remove an ancestral right of way but were confronted with this prescription.

For buyers, always check the history of rights of way: thirty years of use can create a right of way, even without a written title. A notary in Le Bouscat can help you collect neighbour attestations.

Finally, for co-owners or housing estates, this rule also applies: if a housing estate has used a common path for thirty years, the route is fixed, even if the regulations provide for a different route.

Four Tips to Avoid This Type of Dispute

• Have the use recorded by a notarial deed: if you benefit from a regular right of way, ask your notary to draft a recognitive deed (acknowledging the right) or a conventional easement. This avoids any later contestation.
• Keep evidence of possession: keep photos, invoices for maintenance of the path, written witness statements from neighbours. In case of dispute, these elements will be evidence.
• Do not interrupt use: if you stop using the right of way for more than thirty years, the right may be extinguished by non-use. Use it at least once a year, even symbolically.
• Consult a lawyer before any change: if you are the owner of the servient tenement and wish to modify the route, never do so without legal advice. You could be ordered to pay damages (Article 1240 of the Civil Code).

Further Analysis: Related Case Law and Developments

This decision is part of a consistent line of the Supreme Court. Already, in a judgment of 18 June 1991 (no. 89-21.254), the Court had held that thirty-year acquisitive prescription could establish a right of way even in the absence of a title. More recently, a judgment of 6 June 2019 (no. 18-17.852) recalled that the route of an easement can be modified by agreement of the parties, but in the absence of agreement, ancient use prevails.

The trend is therefore favourable to the protection of established use. Courts are reluctant to overturn factual situations that have lasted for decades, for the sake of legal stability. For the future, it can be expected that judges will continue to favour thirty-year possession, provided that proof is provided in an indisputable manner.

However, note: this rule only applies to rights of way (right to pass). For other easements (e.g., view, drainage of water), the rules are different.

Frequently Asked Questions

1. Can I acquire a right of way after less than thirty years of use?
No, acquisitive prescription requires thirty years of continuous, peaceful, public and unequivocal use. Before that time, you only have a revocable tolerance at any time.

2. What should I do if my neighbour suddenly blocks the right of way I have used for more than thirty years?
You can apply to the judicial court in summary proceedings (urgent) to have the right of way restored. Bring all evidence of thirty-year use.

3. Can Article 684 apply despite thirty-year use?
No, according to this decision, thirty-year use prevails. But if use is not established, Article 684 becomes the default rule again.

4. What is the time limit to bring legal action?
The action to claim an easement is barred by thirty years from the date the right of way was contested. Act quickly as soon as the first obstacle arises.

5. How much does a procedure to recognise a right of way cost?
Costs vary: lawyer (€1,500 to €5,000), possible expert report (€1,000 to €3,000), court costs. A preliminary consultation may avoid a trial.

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