Right of way: when the court rules in your favour against an abusive neighbour

Imagine: you have just bought a charming house in Mougins, with a small path crossing the neighbouring property to reach the road. So far, so good. But one fine morning, your neighbour decides to build a wall in the middle of the right of way, cutting off all access. What can you do? This situation, more common than one might think, regularly pits owners against neighbours in court. The decision of the Court of Cassation of 20 March 1980 (No. 79-93.104) provides a firm answer: a right of way cannot be unilaterally removed, even if the servient tenement (the land burdened by the easement) changes its configuration. Explanations.

The facts: a story that happens every day

Mr X, owner of a plot in Mougins, has for decades benefited from a right of way over his neighbour Mr Y's land to access the public highway. One day, Mr Y decides to demolish his old building and build a new, larger house with a swimming pool. In his project, the historic path is blocked by a boundary wall. Furious, Mr X brings proceedings before the police court of Strasbourg – because the case started in the East, but the principle is the same everywhere, including within the jurisdiction of Grasse.

The police court convicts Mr Y for breach of easement. But Mr Y appeals, arguing that the easement was created for access to a building that no longer exists, and that with the new building, the path was no longer necessary. The Public Prosecutor, as the applicant, argues the opposite: a legal or contractual easement is not extinguished merely by reconstruction. The case goes up to the Court of Cassation, which must decide: can an owner, on the pretext of modifying his property, remove an acquired right of way?

The reasoning of the court — explained

The Court of Cassation, in its judgment of 20 March 1980, quashes the appeal decision that had ruled in favour of Mr Y. It relies on Articles 4 and 5 of the Declaration of the Rights of Man and of the Citizen, which have constitutional value, to remind that individual liberty cannot infringe upon rights acquired by others. More concretely, the legal basis is Article 1240 of the Civil Code (formerly 1382), which requires compensation for damage caused by one's fault. By blocking the right of way, Mr Y committed a fault, causing harm to Mr X.

The judges specify that a right of way, whether established by contract or by destination of the father of the family (i.e., when an owner divides his land and leaves access), is not extinguished merely because the servient tenement has been rebuilt. Only an agreement to the contrary, a thirty-year prescription (non-use for 30 years), or the merger of both tenements into the same hands can extinguish it. Here, nothing of the sort. The Court rejects Mr Y's argument that the path was no longer necessary: the utility of the easement is assessed at the time of its creation, not according to subsequent modifications. This is a confirmation of constant case law: the owner of the servient tenement cannot unilaterally modify or remove the easement.

What this means for you — practically

For landlord owners: if your tenant uses a path over a neighbour's land, this right also belongs to you. You can take legal action if the neighbour blocks access. For example, in Le Cannet, an owner of a unit in a condominium recovered €5,000 in damages after the management company closed a path he had been using for 15 years.

For buyers: before buying, always check the existence of a right of way in the notarial deed. If it is not mentioned, but the seller had been using it for a long time, you can request its judicial recognition. Beware: the absence of a written document does not mean absence of right.

For co-owners: common areas often include paths. Never block them, even temporarily, under penalty of having to compensate the aggrieved co-owners. An example: in Mougins, a condominium had to pay €200 per day of delay to a resident deprived of access to his garage for 3 weeks.

For owners of the servient tenement: if you plan works, inform the beneficiary of the easement. If you must modify the path, propose an equivalent route. In case of refusal, the judge may impose an indemnity. Do not risk legal action: costs (lawyer, expert) often exceed €3,000.

Four tips to avoid this type of dispute

• Check the land registry and the title deed: before any purchase, identify active and passive easements. A surveyor can help you map them on the ground.
• Use a written document: if you grant a right of way to a neighbour, formalise it by notarial deed. This avoids later disputes over the extent or existence of the easement.
• Do not give in to convenience: even if the path bothers you, never act without agreement. A simple padlocked gate can cost you dearly: damages, restoration, legal costs.
• Take regular photographs: in case of dispute, dated photos of the state of the premises are solid evidence. Show the peaceful and continuous use of the path.

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

Further reading: related case law and developments

This 1980 decision is part of a consistent line: the Court of Cassation has always protected established easements. For example, in a judgment of 15 January 1975, it held that a right of way is not extinguished by the accidental destruction of the building it serves. More recently, in 2018, it confirmed that an owner cannot unilaterally move the location of the easement, even if the new route is equivalent. The trend is clear: the right of way is a real right, attached to the dominant tenement (the one benefiting from the easement), and not to the person. Courts are very strict about its respect. For the future, expect judges to continue protecting good faith buyers, especially in high-demand areas like the French Riviera, where landlocking is common.

Checklist before taking action

1. Check the existence of an easement: consult your title deed, the land registry, and request an extract from the land registry service.
2. Gather evidence: photos, witness statements, correspondence with the neighbour. The more you have, the stronger your case.
3. Send a formal notice to the neighbour: send a registered letter with acknowledgement of receipt asking him to restore the path within 15 days.
4. Consult a lawyer: before starting proceedings, assess your chances. A first consultation can save you unnecessary costs.
5. Bring the matter to court: if mediation fails, you can sue the neighbour before the judicial court. Timeframes vary from 6 to 18 months depending on the jurisdiction.

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 →