How to End a Right of Way When the Landlock Has Disappeared? Complete Guide 2025

A right of way is a right governed by the Civil Code that allows the owner of landlocked land to access the public highway by passing through a neighboring property. But what should be done when the conditions of landlocked land have disappeared? Has direct access to the public highway been created? This legal guide details the legal steps to terminate a right of way that has become unnecessary, with references to legal texts and recent case law.

What is a right of way and when can it legally end?

Legal definition and legal basis

The right of way is defined by article 682 of the Civil Code which specifies: "The owner whose land is landlocked and who has no exit from the public highway, or an insufficient exit for the agricultural, industrial or commercial exploitation of his property, is entitled to claim from his neighbors' land a sufficient passage to ensure full access to his land."

This easement constitutes what lawyers call a "real charge," meaning that it is attached to the land and not to the person of the owner. Article 637 of the Civil Code states in this regard: "A servitude is a charge imposed on an estate for the use and benefit of an estate belonging to another owner."

Termination of servitude: applicable texts

Article 685-1 of the Civil Code is particularly explicit concerning the extinction of this easement: "In the event of cessation of the enclave, the owner of the dominant land can no longer exercise the easement. The owner of the servient land may at any time request the judicial removal of the right of way when it ceases to be necessary."

This text, resulting from law n° 67-1253 of December 30, 1967, clearly establishes that the owner of the land crossed (servient land) has a right of action to terminate the easement as soon as the enclave no longer exists.

Fundamental distinction: legal easement vs. conventional easement

The case law of the Court of Cassation (Cass. 3rd civ., October 16, 2013, no. 12-21.889) constantly recalls this essential distinction which directly impacts the terms of extinction.

How to verify the actual disappearance of the enclave? Legal and jurisprudential criteria

To terminate a right of way, the preliminary step is to rigorously demonstrate that the enclave has actually disappeared. This verification is based on precise criteria established by case law.

The 5 legal criteria to assess

1. Existence of direct access to the public highway The first thing to check is whether your neighbor now has direct access to a public road or path. Article 682 of the Civil Code specifies that this is access to "the public highway" and not to a shared private road.
2. Sufficiency of access : According to the case law of the Court of Cassation (Cass. 3rd civ., February 19, 2014, no. 13-12.107), access must be “sufficient to ensure full service to the land for its normal use”. A more recent ruling (Cass. 3rd civ., July 11, 2019, no. 18-17.569) specifies that this concept is assessed “according to the purpose of the land and the current needs of its operation”.
3. Permanence and stability of access : Temporary, seasonal or precarious access is not sufficient to terminate the easement. The Court of Cassation requires “permanent and stable access” (Cass. 3rd civ., January 24, 2018, no. 16-26.084).
4. Actual practicability : The Court of Cassation specified in a fundamental judgment of December 16, 2009 (no. 08-22.035) that access must be "practicable without danger or excessive constraint." This criterion is assessed based on the characteristics of the land and its normal use.
5. Evidence of the situation : Article 9 of the Code of Civil Procedure provides that:"It is up to each party to prove in accordance with the law the facts necessary for the success of its claim"To do this, gather:
   • Bailiff's report (article 1 of order no. 45-2592 of November 2, 1945)
   • Certified cadastral plans
   • Dated and geolocated photographs
   • Private expert reports if necessary

This preliminary step is legally decisive, particularly in rural areas such as the Dordogne, Gers, Landes or more broadly the Aquitaine Basin, where land configurations can be complex and where agricultural use requires access adapted to modern equipment.

Determine the legal origin of the easement

There are two main types of easements of way, the termination of which is subject to different rules:

1. The legal easement of enclavement

Established by Articles 682 to 685-1 of the Civil Code, this easement arises automatically from the situation of landlockedness. According to the aforementioned Article 685-1, it disappears as soon as the landlockedness ceases.

The constant case law of the Court of Cassation confirms this principle: “The legal right of way due to landlockedness is extinguished when the landlockedness of the dominant land ceases.” (Cass. 3rd civ., January 30, 2002, no. 00-15.633).

2. Conventional servitude

Governed by Articles 686 to 689 of the Civil Code, this easement results from an agreement between owners. Article 686 specifies: "Owners are permitted to establish on their properties such easements as they see fit, provided that the services established are not imposed on the person, nor in favor of the person, but only on a fund and for a fund."

To remove a conventional easement, you will need to consult the property titles and notarial deeds to understand its termination terms.

The amicable approach: first legally obligatory step since the 2019 reform

The legal obligation of prior amicable attempt

Since January 1, 2020, Article 750-1 of the Code of Civil Procedure (introduced by Decree No. 2019-1333 of December 11, 2019) requires, under penalty of inadmissibility, an attempt at amicable resolution prior to any referral to the judicial court when the claim does not exceed 5,000 euros or when it relates to a neighborhood dispute.

The Constitutional Council also validated this principle in its decision no. 2019-778 DC of March 21, 2019, considering that "the legislator intended to promote the use of alternative dispute resolution methods".

Legal protocol for an effective amicable resolution

The amicable approach must follow a rigorous process to produce legal effects:

1. Initiate a formalized dialogue : Article 56 of the Code of Civil Procedure recommends sending a formal notice by registered letter with acknowledgment of receipt clearly setting out the facts and the request for removal of the easement.
2. Propose a contradictory finding : In accordance with Article 1 of Law No. 2016-1547 of November 18, 2016 on the modernization of justice, propose a joint visit of the premises with a neutral third party (mediator, justice conciliator, notary).
3. Establish a transactional agreement protocol : In application of article 2044 of the Civil Code which defines the transaction as "a contract by which the parties, through mutual concessions, end a dispute that has arisen, or prevent a dispute from arising".
4. Have the agreement authenticated : Article 1369 of the Civil Code gives the notarial act a particular probative force by specifying that it "is valid until proven false of the deed and the facts that the notary has personally noted".
5. Publish the act : The land registry service, in accordance with article 28 of decree no. 55-22 of January 4, 1955, will make this extinction enforceable against third parties, in particular future purchasers.

This amicable approach is particularly recommended in rural areas such as the Dordogne, Gers or Landes, where neighbourly relations are long-term and where legal pragmatism avoids costly and time-consuming procedures before courts often far from small towns.

Legal recourse: procedure and litigation strategy

Prerequisites for bringing the matter before the court

If the amicable attempt fails, article 685-1 of the Civil Code authorizes you to request the judicial removal of the easement: "The owner of the servient tenement may at any time request the judicial removal of the right of way when it ceases to be necessary."

Before any referral, you must be able to justify the prior attempt at an amicable settlement in accordance with Article 750-1 of the Code of Civil Procedure. According to the decision of the Court of Cassation of March 11, 2021 (no. 20-13.307), this justification may take the form of a “registered letter remaining unanswered or a report of non-conciliation”.

Detailed litigation procedure

The legal procedure is structured around several stages precisely defined by the Code of Civil Procedure:

1. Referral to the judicial court territorially competent (Article R211-3 of the Code of Judicial Organization). The summons must be issued by a bailiff and contain, under penalty of nullity, the information prescribed by Article 56 of the Code of Civil Procedure.
2. Creation of a probationary file including:
   • Bailiff's report drawn up in accordance with Article 1 of Ordinance No. 45-2592 of November 2, 1945
   • Cadastral plans certified by the land registry service (article 25 of the law of March 31, 1884)
   • Property titles published in the land registry service
   • Dated and geolocated photographs
   • Witness statements drawn up in accordance with the forms prescribed by Article 202 of the Code of Civil Procedure
   • Topographic surveys if necessary
3. Mandatory representation by a lawyer in accordance with Article 760 of the Code of Civil Procedure which provides that "The parties are, unless otherwise provided, required to appoint a lawyer before the judicial court.".

The judicial expertise phase

In complex cases, which are particularly common in rural or peri-urban areas, the court generally orders an expert appraisal. This measure is provided for in Article 232 of the Code of Civil Procedure: "The judge may appoint any person of his choice to provide him with information through observations, consultation or expert advice on a question of fact which requires the expertise of a technician."

The expert appraisal is conducted according to the adversarial principle defined in Article 16 of the Code of Civil Procedure: "The judge must, in all circumstances, observe and himself observe the principle of contradiction." In concrete terms, this means that the expert must summon all parties and allow them to present their observations.

Possible remedies

The judgment rendered may be appealed within one month of its notification, in accordance with Article 538 of the Code of Civil Procedure. The territorially competent Court of Appeal will then rule again on the entire dispute.

Notarial formalization: definitive legal security

Mandatory publication: legal basis

Whether the removal is obtained amicably (settlement agreement) or legally (final judgment), the last step consists of having the extinction of the easement recorded by notarial deed and publishing this modification in the land registry office.

This crucial step is strictly regulated by several texts:

• Article 28 of Decree No. 55-22 of January 4, 1955 requires the publication of any act modifying real estate rights: “Inter vivos deeds, transfers or declarations of real estate ownership or real estate rights must be published in the service responsible for land registration of the location of buildings.”
• Article 710-1 of the Civil Code, resulting from order no. 2006-346 of March 23, 2006, specifies that: "Any act or right must, in order to give rise to land publicity formalities, be drawn up in authentic form."
• The Court of Cassation recalled in a judgment of June 3, 2015 (no. 14-17.716) that: “The purpose of land registration is to ensure that rights to real estate are enforceable against third parties.”

Detailed notarial procedure

The notarial formalization process involves several technical stages:

1. Drafting of the authentic deed : The notary draws up a document noting the extinction of the easement, mentioning either the transactional agreement or the final judgment having pronounced this extinction.
2. Publication requisition : In accordance with article 34 of decree no. 55-22 of January 4, 1955, the notary sends a publication requisition to the competent land registry service.
3. Publication in the real estate file : The land registry service registers this modification in the real estate file and issues a certificate of publication.
4. Update of the land registry : According to article 3 of decree no. 55-471 of April 30, 1955, the land registry service must be informed of this modification in order to update its documents.

Legal and financial benefits of formalization

This notarial procedure is not a simple administrative formality, but a legally decisive step which presents several concrete advantages:

• Opposability to third parties : According to article 30-1 of decree no. 55-22 of January 4, 1955, only published acts are binding on potential third-party purchasers.
• Permanent security : The deletion becomes incontestable and appears in the chain of ownership titles.
• Real estate valuation : The removal of an easement can significantly increase the market value of the property, particularly in attractive areas such as Bordeaux and its region.
• Litigation prevention : The authentic act, with the enhanced probative force provided for in Article 1369 of the Civil Code, prevents subsequent disputes.

These formalities are particularly important in rural areas such as Dordogne, Gers or Landes where real estate transactions may involve properties with multiple historical easements which need to be clarified.

FAQ: Frequently asked questions about the termination of easements of way

My easement dates from before 1967, can it be removed in the event of opening up?

Yes, Article 685-1 of the Civil Code applies to all legal easements of enclavement, regardless of their date of creation. The Court of Cassation confirmed this in a judgment of May 13, 2015 (no. 14-11.260): "the provisions of article 685-1 of the civil code are immediately applicable to easements established prior to its entry into force".

Who must prove the disappearance of the enclave?

According to Article 1353 of the Civil Code: "Anyone who claims the performance of an obligation must prove it.". It is therefore the owner of the servient land (land crossed) who bears the burden of proving the end of the landlocked situation.

Can I block the passage while waiting for the procedure?

No, Article 134 of the Code of Civil Procedure provides that: "The legal action does not, in itself, suspend execution."Blocking the passage before a final decision could incur your civil liability.

How much does a legal procedure for extinguishing an easement cost on average?

Fees vary depending on the complexity of the case, but expect to pay between €1,500 and €3,000 for a complete procedure (lawyer's fees, possible expert fees, publication fees). The possibility of obtaining legal aid exists depending on resources (Article 2 of Law No. 91-647 of July 10, 1991).

Conclusion: legally secure the extinction of the easement

The removal of a right of way requires a thorough knowledge of property law (articles 637 to 710 of the Civil Code) and a methodical approach adapted to each situation. Articles 682 to 685-1 of the Civil Code and the abundant case law of the Court of Cassation strictly regulate these rights of way, but their practical application requires a precise analysis of the factual and legal elements specific to each case.

Whether it's rural properties in the Dordogne, Gers, Landes, or the Aquitaine Basin, where long-standing easements are common, or urban properties in Bordeaux, where development projects regularly create new access points, each case requires a specific approach. A structured approach, respectful of the law and supported by a legal professional, is the best way to guarantee your rights as a property owner.

The expertise of a lawyer specializing in real estate law will not only allow you to optimize your chances of success, but also to legally secure the procedure and arrive at a lasting solution, whether obtained amicably or through legal channels.

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Last updated: April 2025. This article is for informational purposes only and is based on current legislation and recent case law. For any specific situation concerning a right of way, we recommend consulting a real estate lawyer, such as Maître Zakine, who can advise you based on the specifics of your case. This is not a consultation.