Actualité - Right of way between neighbours: rights and obligations in France

A right of way is the right that allows the owner of a landlocked plot of land to cross a neighbouring property in order to reach the public highway, as provided for in Article 682 of the french Civil Code. This right comes with reciprocal obligations for the land that benefits from the passage and for the land that bears it, particularly with regard to maintenance and compensation. Understanding these rules is essential before buying, selling or developing a property affected by such an easement.

Key points

The legal right of way applies automatically to a landlocked plot, whereas a conventional right of way results from an amicable agreement between neighbours.
An easement should ideally be formalised by a notarial deed and registered with the land registry office in order to be enforceable against future owners.
The dominant land (the beneficiary) must exercise its right without increasing the burden on the servient land, which may claim compensation in the event of landlocking.
Before any purchase, it is essential to check the existence and extent of an easement via the title deed, the land registry and, if necessary, an Optimhome property consultant.

What is a right of way?

A right of way is a burden placed on a piece of land, known as the servient land, for the benefit of another piece of land, known as the dominant land, whose access to the public highway is impossible or insufficient. This landlocked situation may result from a natural geographical configuration, a division of plots, or a construction that has removed an existing access. Article 682 of the Civil Code provides that the owner whose land is landlocked may claim a right of passage over neighbouring lands for the normal use of their property.

This right is not a favour but a legal obligation imposed on the neighbour, subject to compensation proportionate to the harm suffered. The easement attaches to the land and not to its owner: it is automatically transferred upon a sale, which makes it a decisive factor to be aware of before any transaction, both for the buyer and for the seller.

The different types of right of way

The legal easement due to landlocking

This applies automatically as soon as a piece of land is landlocked, without the need for an agreement between neighbours. The route of the passage must follow the shortest path to the public highway while causing the least possible damage to the servient land. In the event of disagreement over the route or the compensation, it is the judicial court that decides, often after an on-site expert assessment.

The conventional easement

This results from an amicable agreement between two owners, whether or not a landlocked situation exists. The parties freely set the terms: width of the passage, hours of use, maintenance, and any compensation. This contractual freedom requires, in return, precise drafting, generally entrusted to a notary, in order to avoid any future ambiguity.

The easement by destination of the head of household ("destination du père de famille")

This particular mechanism applies when a single owner sets up a passage between two plots they own, then sells one of them. If the physical evidence demonstrating the use of the passage is maintained at the time of the division, the easement arises automatically, without a specific deed, provided that nothing in the deed of sale states otherwise.

How to formalise a right of way

To be fully enforceable against third parties, particularly future purchasers, an easement must be recorded by a notarial deed. This document specifies the location of the passage, its width, the terms of use and, where applicable, the amount of compensation paid to the servient land. The deed is then registered with the land registry office, which guarantees its traceability and enforceability in the event of resale.

The easement must be mentioned in the title deed of both plots concerned.
A boundary survey plan may be attached to precisely define the area covered by the passage.
In the absence of formalisation, the legal easement for landlocking remains valid, but its extent may give rise to disputes.
A notary or a chartered surveyor can usefully assist with this process to secure the agreement.

Rights and obligations of the dominant land and the servient land

The owner of the dominant land, that is to say the one who benefits from the right of way, must use it in accordance with its intended purpose, without aggravating its use to the detriment of the neighbour. For example, they cannot unilaterally widen the passage or allow heavier vehicles to use it than what is provided for in the initial agreement. They generally contribute to the maintenance of the portion of land crossed, particularly if the use is shared with the owner of the servient land.

The owner of the servient land, for their part, must tolerate the passage and may not obstruct it in any way, such as installing a locked gate without handing over a duplicate key, or installing obstacles that reduce the agreed width. In return for a legal easement of enclosure, they are entitled to compensation proportional to the damage caused by the passage, whether this involves a loss of cultivable surface area or a nuisance linked to traffic.

Maintenance of the right of way is primarily the responsibility of the party who makes use of it, unless otherwise agreed.
The servient land remains the property of the owner who continues to hold title to the land crossed and may continue to make use of it to the extent that this does not hinder the passage.
Any substantial modification of the layout of the easement requires the agreement of both parties or a court decision.

Frequent disputes and methods of resolution

Disputes relating to rights of way are among the most frequent between neighbours in France. They often concern the actual width of the passage, its precise route, neglected maintenance, or the installation of an obstacle by the servient landowner. A disagreement over property boundaries can also complicate matters, hence the value of an adversarial boundary survey carried out by a chartered land surveyor (géomètre-expert) to precisely fix the parcel boundaries.

Before initiating legal proceedings, an attempt at mediation or conciliation is strongly recommended, and is even required by certain courts for neighbourhood disputes. A mediator or a conciliator (conciliateur de justice) can help the parties reach an amicable agreement, often more quickly and at lower cost than a trial. In the absence of an agreement, the tribunal judiciaire (civil court) of the location of the property remains competent to decide the matter, on the basis of the title deeds, the boundary survey and, if necessary, a court-ordered expert assessment.

Essential checks before buying or selling

Before signing a compromis de vente (preliminary sale agreement), the buyer must absolutely check whether the property being sought is subject to a right of way, whether active or passive. This information normally appears in the title deed, but it can also be looked up with the land registry office (service de la publicité foncière) or by consulting the cadastre. A failure to disclose information about an existing easement may engage the seller's liability and call the sale into question.

Request a copy of the title deed mentioning active and passive easements.
Consult the cadastral plan and, if necessary, have a boundary survey carried out to visualise the exact extent of the passage.
Ask the notaire handling the sale about the history of recorded easements.
Have an online property valuation carried out to gauge the potential impact of the easement on the value of the property.

A right of way, especially if it is poorly defined or a source of tension with the neighbourhood, can indeed weigh on the value of a property and on its liquidity upon resale. Conversely, a clearly formalised, conflict-free easement does not generally prevent a smooth transaction. Getting support from a local professional makes it possible to anticipate these issues as soon as the property is put up for sale, for example by consulting the Optimhome property listings to compare similar properties in the area.

Conclusion

A right of way is an essential legal mechanism for guaranteeing access to any landlocked plot, but it entails precise rights and obligations for both parties concerned. Whether it is legal, contractual, or arising from the "destination du père de famille" (pre-existing use established by a former common owner), formalising it by notarial deed and having it recorded remains the best safeguard against future disputes.

Whether you are a buyer or a seller, taking the time to check the existence and terms of an easement before signing is an essential step. An Optimhome estate agent will be able to direct you to the right contacts, notaire or chartered land surveyor, to secure your property project.

FAQ

Who must maintain a right of way?

In principle, maintenance is the responsibility of the owner of the dominant land who uses the passage, unless otherwise agreed between the parties. If several neighbours share the same passage, maintenance costs may be shared in proportion to each party's use. It is recommended to specify this point in the deed establishing the easement.

Can a right of way be removed?

Yes, a conventional easement can be removed by mutual agreement between the property owners concerned, formalised by a new notarial deed. A legal easement of enclosure only disappears if the enclosure ceases to exist, for example after the acquisition of direct access to the public highway. Prolonged non-use for thirty years may also result in the extinction of a conventional easement.

Can the servient land refuse right of way?

No, in the context of a legal easement due to enclosure, the owner of the servient land cannot refuse right of way, as this is an obligation set out in Article 682 of the Civil Code. However, they can negotiate the least damaging route for their property and request compensation. In the event of persistent disagreement, the judicial court settles the dispute.

How can I find out if my land is subject to an easement?

The primary source of information is the title deed, which must mention the active and passive easements affecting the property. It is also possible to consult the land registry office (service de la publicité foncière) or request a mortgage status report to check the registered deeds. A notary can carry out this search reliably before any transaction.

Does a right of way easement affect the sale price?

It can indeed influence the value of a property, particularly if it crosses a strategic part of the land such as a garden or a buildable area. The impact mainly depends on how clearly it has been formalised and the absence of conflict with neighbours. A valuation carried out by a professional makes it possible to objectively assess this potential reduction in value.

What should be done in the event of a dispute with a neighbour over an easement?

The first step is to favour dialogue and, if necessary, to call on a mediator or a court conciliator to reach an amicable agreement. An adversarial boundary survey (bornage contradictoire) carried out by a surveyor (géomètre-expert) often helps to clarify the boundaries and the exact extent of the right of way. If no agreement is reached, the judicial court of the location of the property remains competent to rule on the dispute.