Right of Way (Servitude de passage): Why a Mere Occupier Cannot Invoke It?

Imagine you own a villa in Antibes, with access shared via a private driveway. Your neighbour, who rents out their property, decides to block this access, claiming they benefit from a servitude (a real right burdening one immovable property for the benefit of another). You wonder: who is right? Can one, simply because they occupy a place, claim rights over someone else's land?

This question, much more common than one might think on the Côte d'Azur where land is valuable and access sometimes complex, has found a clear answer in a decision by the Cour de cassation. The judges have recalled a fundamental principle of real estate law: standing to sue. But what does this mean concretely for you, as a property owner, tenant, or professional in the sector?

The decision of 14 November 2019, which we will analyse, is categorical: a mere occupier, without a title of ownership, cannot rely on a right of way. In short, occupying a place is not enough to create rights over neighbouring land. Let's see why this distinction is crucial, especially in cities like Cannes or Antibes where every square metre counts.

The Facts: A Story as Common as Any

Mr Martin, owner of a plot of land in Antibes, sees his access blocked by the condominium association of the neighbouring building. This association claims to benefit from a right of way over Mr Martin's plot, a strip of land shaded in red on the cadastral plan. This servitude, according to them, allowed "for all uses" the servicing of the plots.

But here's the catch: Mr Martin contests this claim. He points out that the association is not the owner of the dominant tenements (immovable properties) concerned, but merely a manager. The individual co-owners could potentially invoke rights, but not the association as such. The case goes before the courts, with twists typical of real estate disputes.

At first instance, the court rules in favour of the association, considering that the configuration of the premises justifies a right of way. Mr Martin appeals. The court of appeal reverses the decision, considering that the association lacks standing (legal capacity) to sue. The association then appeals to the Cour de cassation, hoping to assert its arguments. But the Supreme Court confirms: without a title of ownership over the dominant tenement (beneficiary of the servitude), no servitude.

undefined, I have come across cases where tenants of villas in Cannes tried to impose servitudes on neighbours, believing that their prolonged occupation created rights. This decision serves as a reminder that real estate law clearly distinguishes between ownership and occupation.

The Court's Reasoning — Analysed

The magistrates of the Cour de cassation base their decision on Article 637 of the French Civil Code, which defines a servitude as "a burden imposed on an estate for the use and utility of an estate belonging to another owner". In other words, a servitude is attached to a property, not to a person. It is "real" (attached to the thing), not "personal".

The reasoning is clear: to invoke a servitude, one must be the owner of the dominant tenement. The association, in this case, is only an agent of the co-owners, without a proprietary title. It therefore cannot rely on a real right. The court specifies: "a servitude is established for the benefit of a tenement", not of a legal person without a land base.

What few people know: this decision confirms consistent case law. Already in 2015, the Cour de cassation (judgment No. 14-20.900) had ruled that a usufructuary (holder of a right of use and enjoyment) could invoke a servitude, because they have a real right. But a mere occupier, no. The distinction is subtle but essential.

The association's arguments? They invoked the configuration of the premises and an annexed plan. But the judges respond: regardless of the physical access, without legal standing, no right. However, note: if the individual co-owners had acted, the outcome might have been different. It is the quality of the parties that is everything.

What This Means for You — Concretely

If you are a landlord in Cannes, this decision protects you. A tenant occupying your villa cannot, alone, create servitudes over neighbouring land. Example: your tenant has been using for two years a driveway crossing the neighbour's land. If the neighbour complains, you, as the owner, are responsible. But the tenant cannot invoke an acquired servitude.

If you are a tenant, understand that your occupation does not give you real rights. You depend on the owner for access. In a case in Antibes, a tenant had to pay €5,000 in damages for illegally using a private passage, believing it to be an acquired right.

If you are a purchaser, always check who holds the servitudes. A competent notary will examine the titles of ownership. A property without legal access can lose 10 to 20% of its value on the Côte d'Azur. Imagine buying a property for €800,000 in Cannes, then discovering that access depends on the goodwill of a neighbour...

If you are a co-owner, know that your condominium association cannot act alone for servitudes. The concerned co-owners must be parties to the action. In practice, this can lengthen procedures by 6 to 12 months, with additional lawyer fees of €3,000 to €8,000 depending on complexity.

Four Tips to Avoid This Type of Dispute

• Check the titles of ownership before any acquisition: demand a statement of servitudes in the notarial deed. A notary on the Côte d'Azur charges €300 to €600 for this verification, but it can avoid costly disputes.
• Document existing accesses: take photos, keep plans, note dates of use. In case of conflict, these proofs are valuable.
• Consult a specialised lawyer at the first sign of tension: a formalised letter can often resolve the problem before court. undefined, 70% of conflicts are resolved this way.
• For condominium associations: have the concerned co-owners act individually, not the association alone. This strengthens your legal position.

Further Insight: Related Case Law and Developments

This decision fits into a consistent line. In 2008 (judgment No. 07-10.300), the Cour de cassation had already ruled that a farmer (agricultural tenant) could not invoke a servitude. The logic is the same: no real right without a proprietary title.

A divergent decision? In matters of prescription (acquisition of a right through the passage of time), the case law is more nuanced. An occupier can sometimes acquire a servitude by thirty-year prescription (30 years of continuous use). But this is the exception, not the rule. And even then, one must prove this use irrefutably.

The trend of the courts is clear: they protect ownership. On the Côte d'Azur, with land pressure, judges are particularly attentive to encroachments. For the future, expect a strict application of this principle. Precarious occupations (squatting, occupation without title) will carry no weight against the rights of owners.

Key Points to Remember

• Who can invoke a servitude? Only the owner of the dominant tenement (or a holder of a real right like a usufructuary).
• Can a tenant do so? No, unless the owner explicitly authorises it.
• A condominium association? No, it must have the concerned co-owners act.
• What to do if your access is contested? Consult a lawyer immediately to verify your titles.
• How much does a dispute cost? Between €5,000 and €15,000 in legal fees, not including damages.

Do you find yourself 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 →