Several landlocked plots obtain a right of way over a neighbour’s land. She asks for an indemnity and seeks an order against all the beneficiaries jointly and severally. The Court of Appeal refuses to fix anything, since it cannot tell against whom and in what proportion the indemnity is claimed. The Cour de cassation (the French supreme court for civil and commercial matters), in a reported decision of 12 September 2024, settles both questions: no joint and several liability between the dominant estates, but the judge must fix the indemnity owed by each of them, in proportion to the nuisance it causes. For the expert, that is a method of calculation.
Under French law, a plot with no access, or insufficient access, to the public road is in a state of enclave (landlocked). Article 682 of the Civil Code entitles its owner to a servitude de passage, a right of way over neighbouring land, against an indemnity. The land that benefits is the dominant estate (fonds dominant); the land crossed is the servient estate (fonds servant).
The facts
A brother and sister, owners of landlocked plots, sued the owner of neighbouring plots to obtain a passage over her property to serve their land. Other owners of adjoining plots, also landlocked, as well as donees and heirs, joined the proceedings to benefit from the same passage, over the neighbour’s property and over her daughter’s.
The case had already been quashed once (Cass. 3e civ., 12 November 2020, appeals no. 19-16.841 and 19-20.224). Ruling on remittal, the Aix-en-Provence Court of Appeal, on 12 May 2022, dismissed the claim for compensation brought by the daughter, owner of the servient estate. Its reasoning: since the indemnity under article 682 of the Civil Code must be proportionate to the damage caused to the servient estate, it cannot be fixed according to the inconvenience and nuisance caused by each of the benefiting plots when the claimant has sought a joint and several order “without specifying against which owner and in what proportions the indemnity was claimed” (translated from the French). Her alternative request for a court-ordered expert appraisal was dismissed in the same breath.
The decision
The Cour de cassation quashed the judgment on this point (Cass. 3e civ., 12 September 2024, appeal no. 22-18.602, reported decision).
On joint and several liability, it sided with the Court of Appeal. Article 682 of the Civil Code gives the landlocked owner the right to claim “a passage sufficient to ensure full access to his land, against an indemnity proportionate to the damage it may cause” (translated from the French). Under articles 1309 and 1310 of the same code, an obligation binding several debtors is divided between them by operation of law and joint and several liability “is not presumed”. The Court concluded that “where several owners of landlocked plots benefit from a passage over a neighbouring plot […], each of them owes the owner of that plot an indemnity compensating the inconvenience and nuisance caused by the exercise of his right, each owner benefiting from the passage causing damage distinct from that caused by the other users of the easement”. No joint and several order can therefore be made.
On the judge’s duty, it raised of its own motion a ground based on article 12 of the Code of Civil Procedure. The judge could not dismiss the claim on the sole ground that it was wrongly directed: “it was for the court to fix the indemnity owed by each owner of the plots benefiting from the passage, in proportion to the nuisance each caused to the servient estate”. By refusing to do so, the Court of Appeal “misconstrued the extent of its duty”. The case was sent to the Nîmes Court of Appeal, including on the alternative request for an expert appraisal.
The ruling mentions no amount: the calculation is precisely what remains to be done.
What the expert takes from it
The indemnity compensates damage, it does not buy a right. Article 682 speaks of an indemnity “proportionate to the damage”. The report therefore does not value the benefit gained by the dominant estate, but the loss suffered by the servient estate: the loss of value of the land burdened (market value free of the easement, then value with the easement, the gap documented with comparables), plus the nuisance in use, noise, dust, loss of privacy, upkeep of the track. The Charte de l’expertise en évaluation immobilière (the French property valuation charter) reminds the expert to check the title deeds and analyse easements and, where the deeds are not available, to state the assumption that the property is free of easements, subject to what he observes during the visit (6th edition, November 2025, Title II, chapter 8, and Title III, § 1.2).
The calculation is done user by user. That is the main contribution of the ruling. Each dominant estate causes “distinct damage”. The report therefore describes, for each plot served, the nature of the use (dwelling, farming, building project), the frequency of passages, the type of vehicles, the section of track used. The overall loss of value of the servient estate is then apportioned between the users according to these criteria, which gives the judge the allocation key he must apply. A claim presented as a lump sum, without this breakdown, exposes the party to a needless debate; the case commented on took more than ten years to get back to this stage.
An expert appraisal is not optional for a judge who lacks evidence. The quashing also covers the dismissal of the alternative request for an expert appraisal. Where the documents do not allow the indemnity to be apportioned, an investigative measure is the normal route. A private report prepared under the Charte, with on-site measurements and comparables, often avoids that detour, or frames it.
Further reading
The Property loss of value page describes how a loss of value linked to an easement is quantified, the timescale and the fee. On the same theme: New building next door: valuing the loss on your French house and Loss of view in a dense urban area: French court demands context. The ruling is available on Légifrance.
What next
A right of way crosses your land, or you need to obtain one?
I measure the footprint, the frequency and the nature of the passage, then I quantify the loss of value of the land crossed and the nuisance specific to each plot that uses it. The report serves the owner of the land crossed as well as the landlocked owners, in negotiation or in court.
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