Easement: Who Pays for Works When the Neighbour Is the One Blocking?

Imagine the scene: you own a house in Talant, with a right of way (easement) over your neighbour's land to access your garage. Everything has been fine for years. One day, your neighbour decides to store building materials along the path, making it impassable. To regain normal access, you need to carry out works – but who pays?

This question is asked by hundreds of property owners every year. The answer is not always what you might think. The French Civil Code provides that the works necessary for the use and preservation of an easement are borne by the person who benefits from it (the owner of the dominant tenement). But what happens if the obstacle comes from the owner of the servient tenement (the one who bears the easement)? The French Supreme Court, in a judgment of 4 February 2009, ruled: in that case, it is the owner of the servient tenement who must bear the costs.

This decision, handed down in a case between a property investment company (SCI) and a tenant, qualifies an old rule and protects the beneficiary of an easement against the manoeuvres of his neighbour. Full analysis.

The facts: a story like many that happen every day

The case began in Auxonne, in the Côte-d'Or region, where a company (SCI Coolen) owned a piece of land. On this land, another owner (SCI LLT) benefited from a right of way to access its own plot. So far, nothing unusual.

But SCI Coolen leased its land to a trader. This tenant, without authorisation, stored materials and goods on the easement path, partially blocking the passage. SCI LLT, unable to use the easement normally, had to incur costs to clear the passage and restore access. It then claimed reimbursement of these costs from SCI Coolen, i.e. €43,905.31.

SCI Coolen refused, arguing that Articles 697 and 698 of the Civil Code place the costs of maintenance and preservation of the easement on the beneficiary (SCI LLT). According to it, it was up to SCI LLT to pay to clear the passage, even if the obstacle had been created by its tenant. SCI LLT brought the matter to court.

At first instance and on appeal, SCI LLT was unsuccessful. The judges considered that the encroachment was the act of the tenant, and that SCI Coolen had not personally caused the disturbance. SCI LLT appealed to the Supreme Court.

The reasoning of the court — analysed

The French Supreme Court, in its judgment of 4 February 2009, quashed the appeal judgment. Its reasoning is simple but powerful: Articles 697 and 698 of the Civil Code (which impose on the beneficiary of the easement the cost of works necessary for its use and preservation) are not applicable when those works have become necessary due to the act of the owner of the servient tenement.

Concrete translation: if it is your neighbour (or his tenant) who creates the obstacle, it is up to him to pay to remove it. You do not have to bear the consequences of his behaviour. The Court relies on the maxim 'No one may take advantage of his own wrongdoing': one cannot benefit from a situation one has created oneself.

The High Court also recalls that the owner of the servient tenement is responsible for the acts of his tenant. In law, the landlord is obliged to guarantee the beneficiary of the easement peaceful enjoyment. If his tenant disturbs that enjoyment, the owner must intervene and, if necessary, bear the costs of restoration.

This decision is neither a reversal nor a major development: it confirms a logical application of the law. But it is important because it clarifies a limit to the general rule of Article 697. The lower courts had misapplied the law by exonerating the owner of the servient tenement. The Supreme Court sets the record straight.

However, note: the decision does not say that the owner of the servient tenement must always pay. It says that the rule of Article 697 gives way when it is he who makes the works necessary. In my practice, I have come across cases where the owner of the dominant tenement had himself allowed the easement to deteriorate: in that case, it is up to him to pay.

What this changes for you — practically

This decision has important practical implications for several categories of people:

• Owner of the dominant tenement (the one who benefits from the easement): If your neighbour or his tenant blocks your passage, you can require him to bear the costs of clearing. Do not accept paying yourself on the pretext that 'the easement is your responsibility'. Have the obstacle recorded by a bailiff (court record) and put the owner of the servient tenement on notice to restore the passage. If necessary, bring legal action to obtain reimbursement of costs you may have advanced.
• Owner of the servient tenement (the one who bears the easement): You must ensure that your tenants or anyone occupying your land do not hinder the exercise of the easement. If you rent, include a clause in the lease prohibiting interference with the easement and inform your tenant of its existence. If a disturbance occurs, you are responsible – even if it was not you who acted. Prevention is better than cure: a simple reminder can avoid costly litigation.
• Tenant: If you rent land subject to an easement, check your obligations. You must respect the neighbour's right of way. In case of encroachment, you may be liable to repair the damage. Be vigilant: storing materials, even temporarily, on an easement path can cost you dearly.
• Purchaser: Before buying a property subject to an easement (servient tenement), inquire about its actual use. If the passage is regularly obstructed, you could inherit conflicts. Conversely, if you buy a property benefiting from an easement (dominant tenement), ensure it is actually usable. A theoretical easement is worthless if it is blocked.

Example with figures: Imagine a right of way in Auxonne. The neighbour (servient tenement) stores rubble there. To remove it and redo the path, the beneficiary (dominant tenement) must pay €5,000. Before this judgment, the beneficiary would have had to bear these costs alone. Now, he can claim them from the owner of the servient tenement. If he has already paid, he can obtain reimbursement through the courts.

If you are in this situation, you should: act quickly. The limitation periods (statute of limitations) are 5 years from the day you become aware of the disturbance. Do not let it drag on or you may lose your rights.

Four tips to avoid this type of dispute

• 1. Have a descriptive statement of the easement drawn up: Whether in a notarial deed or a separate document, describe precisely the location, nature (passage, pipeline, etc.) and the terms of exercise of the easement. This will avoid disputes over the scope of the right.
• 2. Notify the easement to your tenant: If you are the owner of land subject to an easement and you lease it, mention it in the lease and provide a plan. The tenant cannot then claim ignorance.
• 3. Regularly record obstacles: If you are the beneficiary of an easement, have a bailiff's report made each time the passage is obstructed. This will provide solid evidence in case of litigation. The cost (€200 to €400) is a modest investment compared to legal costs.
• 4. Include a clause for reimbursement of costs: In a sale or lease, you can include a clause stipulating that any costs necessary to restore the easement, caused by a party, shall be borne by that party. This avoids having to rely on case law.

Further reading: related case law and developments

This decision is part of a broader trend by the courts to protect the beneficiary of an easement against abuses by the owner of the servient tenement. For example, a French Supreme Court judgment of 10 June 2009 (n° 08-15.473) ruled that the owner of the servient tenement cannot unilaterally change the location of the easement without the beneficiary's consent.

Conversely, some earlier decisions were more restrictive. For instance, a judgment of 3 November 2004 (n° 02-18.469) seemed to suggest that the beneficiary must always bear maintenance costs, even in case of disturbance caused by a third party. The 2009 judgment therefore clarifies the Court's position: the owner of the servient tenement is liable as soon as his act (or that of his tenant) makes the works necessary.

What few people know is that this case law also applies to easements for pipelines (water, gas, electricity). If the owner of the servient tenement builds a wall that crushes the pipes, it is up to him to pay for the repairs.

For the future, we can expect the courts to continue refining this rule. Particularly on the question of proof: how to demonstrate that the obstacle is indeed the act of the owner of the servient tenement? The trend is to require solid proof, hence the importance of a bailiff's report.

In practice: what to do

FAQ: questions I am often asked

My neighbour has blocked the easement, what should I do urgently?
1. Have the obstacle recorded by a bailiff (report).
2. Send a registered letter with acknowledgement of receipt to the owner of the servient tenement, putting him on notice to restore the passage within 8 days.
3. If nothing happens, apply to the urgent applications judge of the judicial court (interim proceedings) for an order for restoration under a penalty payment (e.g. €100 per day of delay).

Can I clear the passage myself and claim reimbursement?
Yes, but keep all invoices and photos. In court, you can claim reimbursement on the basis of Article 1240 of the Civil Code (liability for fault) or unjust enrichment (if your neighbour saved costs at your expense).

What are the time limits?
The limitation period (time to act) is 5 years from the day you became aware of the disturbance. For interim proceedings, count a few weeks. For an action on the merits, 6 to 12 months at first instance.

How much does a procedure cost?
A bailiff's report: €200-400. A formal notice: stamp duty (€25) if done through a judicial officer. Interim proceedings: lawyer's fees between €800 and €2,000 depending on complexity. On the merits: €2,000 to €5,000. But if you win, costs may be awarded against the other party (Article 700 of the Code of Civil Procedure).

Can I obtain damages?
Yes, if the blockage caused you harm (loss of enjoyment, additional costs, etc.). For example, if you had to rent another garage for 3 months at €200/month, you can claim €600.

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