When a property does not have access to the public road or when a neighbor prevents the exercise of an existing easement, the right invoked must first be identified. The lack of access can give rise to the legal right of passage; the blocking of an already established right raises a different issue. A simple difficulty of access does not automatically prove that the conditions of the legal easement are met.

When can the legal right of passage be requested?

Article 617 of the Civil Code provides the right of passage for the owner of a property lacking access to the public road, for the purpose of exploiting the property. The passage must be organized in such a way as to hinder as little as possible the owner of the land being crossed; if there are several options through neighboring properties with access to the public road, the one that causes the least damage is chosen.

The rule has special situations. If the lack of access stems from a sale, exchange, division of property or other legal act, Article 618 limits the claim, in principle, to the purchasers of the land where the transfer was previously made. If the lack of access is attributable to the person requesting the transfer, it can only be determined with the agreement of the owner of the land with access and payment of double compensation.

The right of passage is imprescriptible and expires when the dominant fund acquires another access to the public road. The extent and manner of exercise may be determined by the parties’ agreement, a court decision, or continuous use for 10 years, according to Article 619. Passage also involves the issue of compensation for the owner of the servient fund, which must be analyzed in relation to the specific situation and Article 620 of the Civil Code.

When there is already a servitude

If the right was established by a legal act, by another method provided by law, or is recorded in the land register, verify the title, the route, the width, and the conditions for exercising it. For an existing right that is obstructed, Article 757 of the Civil Code refers to the rules of the superficies confessor’s action: it can be directed against the person who obstructs the exercise of the right, including the owner of the servient estate. The concrete claim can seek the recognition or observance of the right and the removal of obstacles, depending on acts and deeds.

There is no one action suitable for all access conflicts. The choice between the request to establish passage, the confessional action and other remedies depends on the existence and opposability of the right, the cause of the blockage and the evidence. A solution applied in another case does not automatically establish the strategy for a different property.

What evidence can help

  • the property deeds and the possible title of the creation of the servitude;
  • extracts from the land registry, cadastral plans and documents regarding access to the public road;
  • photographs, correspondence and complaints showing the obstacles or refusal to pass;
  • measurements and technical expertise for identifying possible routes and the effect on neighboring funds.

Topographic expertise can be useful for the route, but its necessity and objectives depend on the dispute. It precisely identifies the properties, the existing access, and the result requested by the court.

The competent court

Article 117 of the Code of Civil Procedure establishes the exclusive jurisdiction of the court at the place of the immovable property for applications concerning real estate rights. The classification of the application and the jurisdiction must be verified according to the specific subject matter of the action.

Official sources: Civil Code, in particular Articles 617–620 and 757, and Code of Civil Procedure, Art. 117.

Informational material, not individual legal advice. Documents, land configuration and access history may change the analysis.