Right of Way: When the Neighbour Also Uses Your Path Without Permission

Imagine the scene: you are the owner of a beautiful villa in Cannes, with private access via a communal path that you have always used. One morning, you discover a tanker lorry parked right in the middle, blocking the way. The driver is delivering heating oil to your neighbour, Mr. Dupont. Furious, you ask him to move. But your neighbour retorts that he has the right to use this path, like everyone else. Who is right? This is exactly the question the Court of Cassation decided in 1975, in a decision that remains a reference throughout France, including in the jurisdictions of Grasse and Mont-de-Marsan.

This decision is fundamental for all property owners, tenants and real estate professionals. It answers a simple but crucial question: is a right of way (the right to use another's path to access one's own land) always exclusive? Or can the owner of the path authorise other people to use it? In other words, does your right of way give you a private right of access, like a private road?

In this article, we will dissect this decision, understand what it changes for you in practice, and give you practical advice to avoid disputes. Whether you are in Cannes, Le Cannet or elsewhere, these rules apply. So, ready to become an expert on rights of way?

The Facts: A Story That Happens Every Day

The story begins at the end of the 19th century, when a certain Mr. Nogue acquires a property in Cannes, landlocked (without direct access to a public road). In 1910, by a deed (notarial act), a right of way is created over a path belonging to the commune. Mr. Nogue and his successors in title (subsequent owners) may therefore use this path to access their land. Decades pass. In 1970, a new neighbour, Mr. X (let us call him 'the neighbour'), installs an oil-fired heating system in his neighbouring property. To supply it, a tanker lorry regularly parks on the communal path, while delivering the oil. This parking, although occasional, inconveniences Mr. Y, the current owner of the Nogue land (the beneficiary of the right of way). Mr. Y sues the commune, asking it to prohibit the neighbour from using the path and to stop the parking. He relies on Article 701 of the Civil Code (which prohibits the owner of the servient land – the one burdened by the right of way – from diminishing the use of the right of way).

The first instance court (the Tribunal de Grande Instance of Grasse) rules in favour of Mr. Y: the commune must prohibit access to the neighbour. But the commune appeals. The Court of Appeal of Aix-en-Provence reverses (sets aside) this judgment: it decides that the commune is not obliged to prohibit the neighbour's use of the path. Why? Because the right of way was never created as exclusive. The 1910 deed does not provide that Mr. Nogue has an exclusive right. The neighbour may therefore use the path, provided he does not interfere with the exercise of the right of way. And the occasional parking of the tanker lorry? For the court, this is a normal neighbourhood inconvenience (nuisance), not a violation of Article 701. Mr. Y appeals to the Court of Cassation. The Court of Cassation (the highest court) dismisses his appeal and upholds the appeal judgment.

The Reasoning of the Court – Explained

The heart of the dispute concerns the interpretation of the right of way and Article 701 of the Civil Code. This article provides that 'the owner of the servient land may not do anything that tends to diminish the use of the right of way or to make it more inconvenient'. Mr. Y argued that the commune, by allowing the neighbour to use the path, diminished his use. But the Court of Appeal, approved by the Court of Cassation, considered that the right of way was not exclusive. In other words, Mr. Y's right of way was not an exclusive right: he could exercise it, but other people (such as the neighbour) could also use the path, provided they did not excessively inconvenience him.

In short, the judges interpreted the deed creating the right of way (the 1910 deed): since nothing indicated that the passage was reserved for Mr. Nogue alone, the commune remained free to authorise other users. The mere fact that a third party uses the path 'in the same way' (i.e., as a mere user, without any special right) does not constitute an act that diminishes the use of the right of way. As for the parking of the tanker lorry, the court considered that it was a normal neighbourhood inconvenience, not an aggravation of the right of way. This is an application of the theory of abnormal neighbourhood disturbances (Article 1240 of the Civil Code, which requires compensation for damage caused by one's fault). Here, the parking was occasional, therefore normal.

This reasoning is important: it reminds us that a right of way is not a right of ownership over the path, but a mere right of use. The owner of the path (here the commune) retains control over it, unless otherwise provided. The decision is neither a development nor a reversal: it applies consistent case law. But it has the merit of clarifying that exclusivity is not presumed; it must be provided for in the deed.

What This Changes for You – In Practice

For owners of a dominant land (beneficiary of a right of way), this decision is a warning: you cannot prevent neighbours from using the communal path, unless your deed of right of way expressly provides for exclusivity. undefined, I have come across cases where owners in Cannes thought they had a private right over a communal path, but the deed was silent. Result: they had to tolerate the passage of others, and even deliveries. Concrete example: if you own a villa in Le Cannet, with access via a communal path burdened by a right of way, your neighbour can have materials delivered there, provided it does not become excessive.

For tenants, the situation is similar: you benefit from the rights of the owner. If you rent a house with a right of way, you cannot demand exclusivity if the owner does not have it.

For real estate professionals (agents, developers, notaries), this decision reminds us of the importance of checking the deed of right of way before any transaction. A buyer must know whether the access he uses is exclusive or shared. Otherwise, disputes arise after the sale. For example, a developer in Cannes who builds a housing estate on landlocked land must ensure that the right of way is exclusive for his plots, otherwise future owners may complain about the delivery lorries of neighbours.

If you are in this situation, you should: 1) Check your title deed (deed of right of way) to see if exclusivity is mentioned. 2) If not, you cannot prohibit use by third parties. 3) If a neighbour abuses (daily parking, frequent blockages), you can take action on the basis of abnormal neighbourhood disturbances (Article 1240). The time limits for taking legal action are 5 years from the disturbance (limitation period). The amounts? Damages from a few hundred to several thousand euros depending on the inconvenience.

Four Tips to Avoid This Type of Dispute

• Check your deed of right of way: Before acquiring a property benefiting from a right of way, have the deed analysed by a notary or lawyer. Exclusivity must be written in black and white. Otherwise, consider that the access is shared.
• Negotiate an exclusivity clause: If you are the owner of the servient land (the path) and you create a right of way, provide whether it is exclusive or not. This avoids later disputes.
• Document the disturbances: If a neighbour abuses the access (repeated parking, blockages), take photos, videos, and note the dates and times. This evidence is essential to prove an abnormal neighbourhood disturbance.
• Prioritise conciliation: Before starting legal proceedings, attempt an amicable settlement (recorded delivery letter, mediation). Legal costs (lawyer, expert) can exceed €5,000, with no guarantee of success.

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Further Reading: Related Case Law and Developments

This 1975 decision is part of a consistent line: the Court of Cassation has always refused to presume the exclusivity of a right of way. For example, in a judgment of 16 March 1994 (No. 92-14.567), it held that the owner of the servient land could authorise other people to use the path, unless otherwise provided. However, if the right of way is created by 'destination du père de famille' (Article 693 of the Civil Code), exclusivity may be implied if the path only serves one piece of land. The trend of the courts is therefore to stick strictly to the deed. For the future, it is likely that this position will continue, especially since rights of way are often a source of conflict. Judges encourage clear drafting of deeds.

What You Must Absolutely Remember

1. A right of way is not exclusive unless stated otherwise in the deed. Even if you have used it for years, the owner of the path can authorise other users.
2. The occasional parking of a delivery vehicle is a normal neighbourhood inconvenience, not a violation of the right of way. To prohibit it, you must demonstrate an abnormal disturbance (frequency, duration, total obstruction).
3. Before buying a property with a right of way, have the deed checked by a professional. A non-exclusive right of way can reduce the value of the property or cause nuisance.
4. In case of a dispute, act quickly. The limitation period is 5 years. Consult a lawyer specialising in property law, such as Maître Zakine, to assess your chances.
5. Conciliation is often more effective than a trial. The cost of legal proceedings (lawyer, bailiff, expert) can reach €10,000, whereas an amicable agreement can resolve the problem in a few weeks.

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 →