Landlocked land in France: right of way, compensation, end

What is landlocked land?

Under article 682, land is landlocked (enclavé) when it has “no access, or only insufficient access” (our translation) to the public highway. Insufficiency is assessed against two needs:

• the agricultural, industrial or commercial use of the property;
• carrying out building or housing-development operations (opérations de construction ou de lotissement).

Service-public.gouv.fr confirms that the right of way also applies in order to build (fact sheet F2040). It is a legal right: it exists without a contract, unlike an ordinary right-of-way easement (servitude de passage), which can only be established by title (art. 691).

Land that is difficult to access. Land that is not landlocked but merely difficult to access gives no right to cross the neighbour’s land. You must obtain their agreement, set down in a written document: this is called a servitude conventionnelle (easement by agreement) (F2040). The general rules are set out in our guide on servitudes (easements).

Before buying. For a building plot with no direct access to the public highway, see our guide achat d’un terrain (buying a plot of land).

Where to pass: the route and the assiette

The two criteria of article 683. The passage must “as a rule” be taken on the side where the route is shortest from the landlocked land to the public highway. It must nevertheless be fixed at the point least damaging to the owner who bears it.

Landlocking caused by a division. If the land became landlocked through the division of a plot by a sale, an exchange, a partition or any other contract, the passage can only be claimed over the plots resulting from that division. Article 682 only becomes applicable again if no sufficient passage can be established over them (art. 684). Service-public.gouv.fr specifies that this rule applies even if the route is then the longest (F2040). See our guide on division parcellaire (dividing a plot).

Fixing the passage amicably. The route, the width, the manner of use and the compensation can be agreed between neighbours, by acte sous seing privé (private written agreement) or by acte authentique (deed drawn up by a notary) (F2040).

Thirty years of use. “The assiette and manner of a right of way on grounds of landlocking are determined by thirty years of continuous use” (art. 685). A route used without interruption for thirty years therefore becomes the route of the easement.

Moving the passage. The owner of the land crossed may do nothing that reduces the use of the easement or makes it less convenient, nor move it on their own initiative. If the original location has become more burdensome for them or prevents them from carrying out worthwhile repairs, they may offer an equally convenient location, which the beneficiary cannot refuse (art. 701). For their part, the beneficiary may change nothing that worsens the position of the land crossed (art. 702).

Compensation and upkeep

Compensation. It is proportionate to the damage the passage may cause (art. 682): destruction of a wall, loss of enjoyment or any other harm. It can be paid in a single sum or periodically for as long as the easement lasts (F2040).

Time limit on compensation. The claim for compensation is subject to a limitation period, but the passage can continue even once that claim is no longer admissible (art. 685).

Upkeep. The beneficiary of the passage must keep it usable (clearing brush, clearing snow, cleaning) and repair damage linked to its use. If both neighbours use the passage, upkeep is shared (F2040). The works needed to use and preserve the easement are borne by the person to whom it is owed, unless the title provides otherwise (art. 697 and 698).

Sale. The easement is attached to the property, not to its owner: it passes automatically to the buyer (F2040).

The end of the right of way

End of the landlocking. When the land ceases to be landlocked and access is provided under the conditions of article 682, the owner of the land crossed may, at any time, invoke the extinction of the easement. Failing an amicable agreement, its disappearance is recorded by the judge (art. 685-1). Service-public.gouv.fr cites the creation of a road or a public path. The neighbour may then ask for structures to be removed, a gate for example. It is best to formalise the end of the passage by private agreement or notarial deed, the fact sheet recommends (F2040).

A difference in wording. Fact sheet F2040 states that the right of way “ceases” when the land is no longer landlocked. Article 685-1 instead provides that the neighbour may invoke extinction, recorded in court failing agreement.

Non-use for 30 years. Any easement is extinguished by thirty years of non-use (art. 706). For a right of way, a discontinuous easement, the period runs from the day one ceased to use it (art. 707). If the benefiting land is held in indivision (joint ownership), use by a single joint owner prevents prescription for all (art. 709).

Both plots in the same hands. The easement is extinguished when the benefiting land and the land crossed belong to the same owner (art. 705).

In the event of a dispute

Failing agreement, the tribunal judiciaire (civil court) for the place where the property is located fixes the location of the passage, how it is used (on foot, by car, etc.) and the amount of compensation (F2040).

The amicable step: compulsory or not? Fact sheet F2040 presents prior recourse to a conciliateur de justice (court conciliator), a mediator or a procédure participative (collaborative procedure) as compulsory. Article 750-1 of the code de procédure civile (Code of Civil Procedure) only requires it for certain claims:

• those for a sum not exceeding €5,000;
• those falling under certain actions listed in the code de l’organisation judiciaire (Code of Judicial Organisation), such as boundary-fixing, planting distances or the flow of water (COJ, art. R211-3-4 and R211-3-8);
• those based on an abnormal neighbour nuisance (trouble anormal de voisinage).

The right of way for landlocked land does not appear in these lists. A compensation claim of €5,000 or less, however, remains subject to the prior settlement attempt.

Which professional to consult

The géomètre-expert (chartered land surveyor) surveys the site and can mark out on a plan the assiette of the passage, its width and its route. The notaire (notary) drafts the acte authentique that fixes the passage, how it is used and the compensation, or that records its extinction (F2040).