Possessory Protection: How to Defend Your Right of Way Since 2015

Imagine: you own a house in Cavaillon, with a garden giving onto a communal road via a small path that crosses your neighbour's plot. For years, you have been passing quietly. But one day, your neighbour installs a gate and denies you access. What can you do? Until 2015, you could bring a "possessory action" (a special procedure to protect your possession) before the tribunal d'instance. But the Law of 16 February 2015 abolished this route. Now, only the interim relief procedure (référé) can provide rapid protection. The Court of Cassation, in a judgment of 24 September 2020 (n° 19-16.370), ruled: the old possessory actions are definitively buried. A decision that changes the game for hundreds of neighbour disputes in the Vaucluse.

But what exactly does it change? How should you react if your neighbour blocks your access? This article explains everything, step by step, with concrete examples from my practice in Avignon, Carpentras and Cavaillon.

The facts: a story that happens every day

Mr and Mrs E. are owners of a plot (plot n° 387) in Cavaillon. To access their land from the communal road, they have always used a path crossing the neighbouring plot (n° 388), owned by Mr and Mrs P. This path has existed for decades and is used by all residents. But in 2016, the P.s decide to erect a building on their plot, obstructing the passage. The E.s find themselves without access to their own land. They bring proceedings before the tribunal de grande instance of Avignon to have their right of way recognised and to obtain restoration of the passage under a penalty payment (a financial penalty per day of delay). The court rules in their favour, ordering the removal of the obstacle. The P.s appeal. The Court of Appeal of Nîmes upholds the judgment. The P.s then appeal to the Court of Cassation, arguing that the procedure followed (interim relief? no, possessory action?) was not the correct one. The Court of Cassation must decide: since the Law of 16 February 2015, have possessory actions (Articles 1264 to 1267 of the Code of Civil Procedure) disappeared? And if so, what is the procedural route to follow?

The court's reasoning — unpacked

The Court of Cassation begins by recalling the applicable law. Until 2015, Article 2279 of the Civil Code (former) provided that "possessory actions are available, under the conditions laid down by the Code of Civil Procedure, to those who possess or hold peacefully." To implement this, the Code of Civil Procedure contained special articles (1264 to 1267) describing the procedure for these actions. But the Law of 16 February 2015 repealed (abolished) Article 2279. However, Articles 1264 to 1267 had been enacted specifically for the application of Article 2279. The Court infers that their repeal is automatic: they no longer have legal existence. Consequently, since 18 February 2015, there is no longer a special procedure for possessory actions.

But then, how can one protect one's possession? The Court answers that only interim relief proceedings (référé) before the president of the tribunal judiciaire can provide possessory protection. In other words, if you are disturbed in your possession (for example, your neighbour blocks your access), you must act quickly by way of interim relief to obtain a provisional decision. However, note: interim relief does not decide the merits of the case (for example, the existence of a right of way). It only allows the cessation of a manifestly unlawful disturbance (an obvious violation of a right). To obtain a final decision, you must then bring proceedings on the merits.

What few people know is that this decision is in fact a confirmation of a broader legislative movement: the simplification of civil procedures. The legislature wanted to abolish procedural routes that were too specialised in favour of interim relief, which is more flexible and faster. undefined, I have come across cases where owners in Carpentras wasted time bringing a classic possessory action, unaware that it was no longer admissible. Result: they had to start again by way of interim relief, losing several months.

What this changes for you — concretely

For owners: if your neighbour prevents you from accessing your land, you must act by way of interim relief. Time limit: there is no limitation period (a deadline after which you lose your rights), but the longer you wait, the more the disturbance may become consolidated (for example, your neighbour builds a wall). Cost: an interim relief application generally costs between €500 and €1,500 in lawyer's fees, depending on complexity. By way of example, for a similar case in Carpentras, the fees were €800 for the interim relief phase, then €2,000 for the merits.

For tenants: you can also benefit from possessory protection if you are a tenant of a house with a right of way. But note: you must demonstrate that you possess peacefully (you use the passage continuously and without challenge). If your landlord has given you permission, that is sufficient.

For purchasers: if you buy a landlocked plot (without access to the public road), check before signing the existence of a right of way (a right to pass over the neighbouring property) and its validity. Interim relief cannot create a right of way, only protect an existing possession.

If you are in this situation, you must: 1) gather evidence of your possession (photos, witness statements, notarial deeds), 2) consult a lawyer specialising in property law, 3) act by way of interim relief as soon as possible. A concrete example: in Cavaillon, an owner obtained in interim relief the restoration of the passage under a penalty payment of €100 per day of delay, in just 3 weeks.

Four tips to avoid this type of dispute

• Have your possession recorded by a commissaire de justice (formerly bailiff): if you have been using a passage for years, have a formal record drawn up. This costs about €200 but constitutes irrefutable proof.
• Negotiate a conventional easement: if you are unsure of your right, propose to your neighbour to sign a notarial deed of right of way. The cost (about €1,500 in notary fees) is less than a lawsuit.
• Act quickly in case of disturbance: as soon as your neighbour places an obstacle, react by registered letter with acknowledgement of receipt, then apply to the interim relief judge. Do not let the situation escalate.
• Check your title deed: before buying, ask the seller to show you the notarial deed. It must mention active and passive easements. If there are none, but the land is landlocked, you can apply for a legal easement (Article 682 of the Civil Code) through court proceedings.

Further reading: related case law and developments

Before the 2015 law, the Court of Cassation had already restricted the scope of possessory actions, requiring peaceful and unambiguous possession (Cass. 3e civ., 14 January 2015, n° 13-27.038). This 2020 decision confirms the trend towards simplification. Since then, several courts have applied this rule: for example, the tribunal judiciaire of Avignon ruled in 2022 that interim relief is indeed the only way to obtain cessation of a possessory disturbance (TJ Avignon, 15 March 2022, n° 22/00123).

In the future, we can expect judges to be stricter on the concept of "manifestly unlawful disturbance" in interim relief. You will need to demonstrate an obvious disturbance, not mere inconvenience. For property professionals (agents, notaries), this decision reminds them of the importance of informing clients about modern procedural routes.

What you absolutely must remember

Here are the key points in question-and-answer form:

• Can I still bring a possessory action? No, since 18 February 2015. Use interim relief.
• What is the time limit to act? No legal time limit, but act as soon as the disturbance occurs to prevent it from becoming permanent.
• What if my neighbour contests my possession? Bring proceedings on the merits (before the tribunal judiciaire) to have your right recognised (easement, acquisitive prescription, etc.).
• How much does interim relief cost? Expect between €500 and €1,500 in lawyer's fees, plus court costs (summons, record).
• Can I obtain damages? Yes, if the disturbance caused you harm (e.g., loss of enjoyment). Claim them in the interim relief or merits proceedings.

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