Private path: joint ownership or right of way?

A housing estate of four houses served by a tarmac driveway. Two owners who share a dirt track leading to their garages. An old rural building accessible only across the neighbour's land. These ordinary situations conceal a legal question with significant consequences: is this private path held in joint ownership (indivision) or burdened by a right of way (servitude de passage)? The applicable regime determines who maintains it, who pays for works, what is transferred on a sale and who is liable for accidents. This article compares the two regimes from the practical standpoint of neighbours, to understand the concrete effects of each on maintenance, transfer and liability.

Two legal regimes for the same path

A private path shared between neighbours may fall under two radically different legal structures. The two are frequently confused, including by owners who have used the same path for years without knowing on what basis they do so.

The path in joint ownership

Under the joint ownership regime, the path belongs collectively to several persons. Each neighbour holds an undivided share (for example a quarter or a third) in the entire area of the path, without any physical portion being allocated to him or her individually. No one can say "the first ten metres are mine": all own everything, in proportion to their share.

Joint ownership is governed by Articles 815 et seq. of the French Civil Code. Its fundamental feature is set out in Article 815:

No one may be compelled to remain in joint ownership and partition may always be sought, unless it has been deferred by judgment or agreement.

This rule has decisive practical significance for a path shared between neighbours: in principle, any joint owner may ask to leave the joint ownership and seek partition. For a path, physical partition is rarely possible without destroying its access function, which explains the frequent use of a joint ownership agreement (convention d'indivision) organising its management and excluding partition for a fixed period.

The right of way

The right of way rests on the opposite logic. The path belongs to a single owner, known as the owner of the servient land. The others, owners of the dominant land, do not own the ground: they merely have the right to cross it.

Article 637 of the French Civil Code defines an easement (servitude) as a charge imposed on a property for the use and benefit of a property belonging to another owner. The path therefore remains the exclusive property of one neighbour, but it bears a charge for the benefit of the neighbouring land.

Two main sources must be distinguished. The statutory right of way on grounds of landlocking (enclave) derives from Article 682 of the French Civil Code: an owner whose land is landlocked, that is to say without sufficient access to the public highway, may claim a passage over his or her neighbours' land, subject to payment of compensation. A contractual easement, by contrast, arises from an agreement (often recorded in a notarial deed) and may exist even without landlocking, for example simply for convenience of access. The calculation of this compensation and the distinction between a free and a paid easement are detailed in our article on the price of a right of way.

One technical point deserves attention. A right of way is a discontinuous easement: its exercise requires the present act of a person. Article 691 of the French Civil Code provides that discontinuous easements, whether apparent or not, may be established only by title. In other words, a neighbour does not acquire a right of way merely through the habit of passing, even over many years, except where the law opens a specific route such as landlocking.

Maintenance of the path: who pays for what?

This is the most common point of friction between neighbours. Potholes, resurfacing with gravel, clearing vegetation, lighting, water drainage: the question of who pays depends entirely on the regime.

Maintenance of a path in joint ownership

In joint ownership, maintenance expenditure is a common charge shared between the joint owners in proportion to their rights. An owner who holds a quarter of the path in principle bears a quarter of the conservation works.

Day-to-day management is governed by Article 815-3 of the French Civil Code, which allows joint owners holding at least two thirds of the rights to carry out acts of administration, including necessary maintenance works. Acts that do not fall within normal use, or acts of disposal, require unanimity. Complete resurfacing may thus be decided by a two-thirds majority, whereas the sale of a strip of the path would require everyone's consent.

A joint owner who has advanced useful costs is not without recourse. Article 815-13 of the French Civil Code provides that account must be taken, on partition, of necessary expenditure incurred for the conservation of the jointly owned property. The neighbour who alone paid for the path to be restored therefore has a claim against the joint ownership, provided that he or she keeps the supporting documents and acts in accordance with the management rules. On the acts that a joint owner may carry out alone and the reimbursement of his or her expenditure, see our analysis of works carried out without the consent of the other joint owners.

In practice, joint ownership favours cost sharing, but it requires majorities to be found. A minority joint owner who alone wants works may come up against the refusal of the others, unless he or she applies to the court in the event of a deadlock endangering the common interest.

Maintenance of a path burdened by an easement

The easement regime reverses the burden. The principle is laid down by Articles 697 and 698 of the French Civil Code. Article 697 provides that the person to whom an easement is owed has the right to carry out the works necessary to use and preserve it. Article 698 specifies:

These works are at his expense and not at that of the owner of the servient land, unless the deed establishing the easement provides otherwise.

In concrete terms, it is in principle the beneficiary of the right of way, the owner of the dominant land, who bears the maintenance of the path, and not the owner of the ground. This solution often surprises neighbours, who imagine the opposite. The logic is consistent: the owner of the servient land already bears the burden of the passage over his or her land and does not also have to finance its use by others.

This principle is subject to two important qualifications. First, the deed may provide for a different allocation, for example placing maintenance on the servient land or sharing it. The drafting of the deed is therefore decisive. Second, where several dominant properties use the same path, the maintenance burden is shared between them, generally in proportion to their use.

Article 699 of the French Civil Code adds a safety valve: where the owner of the servient land has undertaken by deed to carry out maintenance works at his or her own expense, he or she may be released from this burden by abandoning the servient land to the owner of the dominant land. This option of abandonment remains rare but illustrates the flexibility of the regime.

Take a rural house accessible by a path belonging to the neighbouring farmer, on the basis of a contractual easement that says nothing about maintenance. The owner of the house who wishes to lay stone on the path will have to pay for the works, but is entitled to do so without any specific authorisation from the neighbour, provided that they are necessary for the use of the passage and do not increase the burden on the servient land.

Selling a property: what changes depending on the regime

The regime of the path has a direct effect on the transaction, on the price and on the notary's checks. Every seller and every buyer should verify this point beforehand.

Selling a property with an undivided share in a path

Where the path is held in joint ownership, the undivided share is an accessory to the property sold. In practice, the deed of sale must transfer, together with the house, the undivided fraction of the path attached to it. Omitting this transfer creates intractable situations in which the buyer owns the house but has no ownership of the path that serves it.

The individual exit of a joint owner raises a difficulty. Since physical partition of a path is generally impracticable, the seller assigns his or her share rather than seeking partition. However, the other joint owners often have a right of pre-emption on the assignment of an undivided share, under Articles 815-14 et seq. of the French Civil Code, which lengthens the procedure and requires prior notification of the proposed assignment and its price.

Joint ownership may also put off a buyer. It carries the seeds of a risk of deadlock between joint owners, of an untimely request for partition or of a dispute over charges. A well-drafted joint ownership agreement, organising management, the allocation of costs and the duration of the joint ownership, reassures the buyer by framing these risks.

Selling a property served or burdened by an easement

With an easement, the question divides according to whether the dominant or the servient land is being sold.

An easement is a right in rem attached to the land, not to the person. It therefore follows the land on a sale. The owner of a dominant property who sells his or her house automatically transfers the benefit of the passage to the buyer, without having to negotiate again with the neighbour. Conversely, a person who buys servient land buys land burdened by the charge: he or she will have to tolerate the passage, even though he or she was not a party to the original agreement.

To be enforceable against the buyer, a contractual easement must have been registered with the land registry (service de la publicité foncière). The notary checks the land charges search and the previous deeds to reveal the existence of the easement. An unregistered or merely verbal easement exposes the parties to disputes over its enforceability, hence the importance of a written and registered title.

The effect on price differs markedly. Dominant land that benefits from access secured by an easement gains in value, especially if it would be landlocked without it. Servient land suffers a discount linked to the burden it bears. A seller who conceals a right of way burdening his or her land is exposed to a claim by the buyer, since the burden affects the use of the property sold.

Liability in the event of an accident or damage

A walker who falls on the path, a vehicle damaged by a pothole, a boundary wall that collapses onto the driveway: here again, the question of liability is resolved differently depending on the regime.

The main basis is liability for things, derived from Article 1242 of the French Civil Code (former Article 1384), which rests on the custodian (gardien) of the thing, that is to say the person who has its use, direction and control.

In joint ownership, all the joint owners are liable to be regarded as custodians of the path, since they share its use and control. The victim may therefore seek the collective liability of the joint owners, each then contributing to the debt according to his or her rights. This shared liability is a strong argument for insurance covering the jointly owned path and for careful monitoring of its condition.

With an easement, the analysis is more nuanced. The owner of the servient land remains owner of the ground, but the beneficiary of the passage exercises actual use and control over the path, all the more so since he or she bears its maintenance under Article 698. Custody may thus be attributed, depending on the circumstances, to the person who actually controls the path at the time of the damage. A failure to maintain attributable to the beneficiary of the passage engages his or her liability, whereas a defect affecting the ground itself may engage that of the owner of the servient land.

Two precautions limit the risk. First, specify in the deed creating the easement or in the joint ownership agreement the allocation of maintenance and safety obligations, as this allocation guides the analysis of custody. Second, take out liability insurance expressly covering the path, identifying whether the dominant or the servient land bears its cost.

How to find out which regime applies to an existing path

Many neighbours do not know the exact status of the path they use. Three sources make it possible to decide.

The first step is to examine the title deeds. The notarial deed of acquisition normally mentions either the undivided share in the path or the existence of an easement, active or passive, with a reference to the deed creating it. The cadastral description also helps: a path with its own plot, held by several owners, points towards joint ownership; a path included in the plot of a single neighbour points towards an easement.

The second step is to consult the land registry, which records the registered deeds affecting real property, including contractual easements. A notary or a lawyer can obtain the statement of entries and reconstruct the legal history of the path.

The third case concerns paths in housing estates. The estate regulations (règlement de lotissement), the specifications (cahier des charges) and the articles of any owners' association (association syndicale) often specify the status of the roads and common areas. A path may be organised there as joint ownership between the lot owners, or managed by a private owners' association (association syndicale libre) owning the roads, which is a regime distinct from simple joint ownership between neighbours.

Where no clear title exists, the situation becomes delicate. For a right of way, Article 691 of the French Civil Code provides that a passage, being a discontinuous easement, is in principle acquired only by title and not by mere possession. Long-standing tolerance of a passage is therefore not sufficient to create an enforceable right, except in the case of landlocking, where the right of passage derives from the law itself. The criteria applied by the courts to establish landlocking are discussed separately in our article on case law on rights of way.

Choosing or changing the regime: how neighbours should decide

Where a project allows a choice, for example on a subdivision of plots or the creation of a shared access, the choice between joint ownership and an easement deserves careful thought.

Joint ownership is suitable where the neighbours want genuine co-ownership of the path, with costs shared pro rata and common governance. It requires cooperation and benefits from being framed by a joint ownership agreement. Articles 1873-1 et seq. of the French Civil Code permit such an agreement, which may be concluded for a fixed term, within the limit set by Article 1873-3, and renewed, in order to exclude partition and stabilise management. Without this framework, Article 815 leaves open the threat of a request for partition at any time.

An easement is suitable where a single neighbour naturally owns the ground of the path and the others only need to pass over it. It is simpler to transfer, follows the land on sales and in principle places maintenance on the beneficiaries. It is less exposed to the risk of collective deadlock, but it creates a lasting asymmetry between the owner of the ground and the users.

Moving from one regime to the other is possible but formal. Converting joint ownership into an easement requires a partition allocating the ground of the path to a single owner, followed by the creation of an easement for the benefit of the other properties. The whole operation requires a notarial deed and registration. These operations have a cost, but they permanently clarify relations between neighbours and avoid far more costly disputes.

Conclusion

The choice between joint ownership and a right of way is not a lawyer's subtlety: it concretely determines the daily life of neighbours around the path. Joint ownership establishes co-ownership of the ground, with shared costs but a risk of deadlock and a latent threat of partition. An easement separates ownership of the ground from the right of passage, in principle places maintenance on the beneficiaries under Article 698 of the French Civil Code, and is transferred automatically with the land on sales. As regards liability, joint ownership tends towards collective custody, whereas an easement points custody towards the person who actually controls the path.

The underlying position is simple: whatever the regime, the worst choice is to have nothing in writing. A shared path without clear title, without a joint ownership agreement or without a registered easement, is a certain source of conflict over maintenance, sale and accidents. Before any shared access is laid out, have a notary or a lawyer draw up a precise title setting out the regime, the allocation of maintenance costs and the exact area of the path, then check that it has been registered with the land registry.

Frequently asked questions

Can a private path held in joint ownership be sold by a single neighbour? A joint owner cannot alone sell the whole of the path, which belongs to all. He or she may, however, assign his or her undivided share, but the other joint owners in principle have a right of pre-emption under Articles 815-14 et seq. of the French Civil Code, which requires them to be notified of the proposed assignment and its price. The sale of the house must be accompanied by the transfer of the share in the path attached to it. Otherwise, the buyer risks owning a property without any right over the path that serves it.

Who must maintain a path burdened by a right of way? In principle, maintenance is the responsibility of the beneficiary of the passage, that is to say the owner of the dominant land, under Articles 697 and 698 of the French Civil Code. The owner of the ground, the servient land, does not have to finance its use by others. The deed creating the easement may, however, provide for a different allocation. Where several dominant properties use the path, the burden is shared between them, generally in proportion to their use.

Does a right of way disappear if it is not used? An easement established by title may be extinguished by prolonged non-use, the extinction period being thirty years under Article 706 of the French Civil Code. The easement is also extinguished where its exercise becomes permanently impossible. However, as long as land remains landlocked, the right of passage based on Article 682 of the French Civil Code continues, since it derives from the situation of the land and not from a mere title.

How can I find out whether my path is held in joint ownership or burdened by an easement? The first document to consult is the title deed, which normally mentions the undivided share or the easement, active or passive. The land registry records registered contractual easements and makes it possible to reconstruct the history of the path. For a housing estate, the regulations, the specifications and the articles of any owners' association specify the status of the roads. In case of doubt, a notary or a real estate lawyer can resolve the ambiguity.

Can a right of way be obtained through long use of the path alone? No, save in exceptional cases. A right of way is a discontinuous easement and, under Article 691 of the French Civil Code, discontinuous easements are in principle acquired only by title, never by possession alone, however long. Long-standing tolerance of a passage therefore does not create an enforceable right. The only case in which a passage arises without a title is landlocking, provided for by Article 682 of the French Civil Code, where the right results from the law.

Which regime offers the best protection in the event of an accident on the path? No regime is inherently protective; everything depends on a clear allocation of responsibilities and on insurance. In joint ownership, custody of the path tends to be collective, exposing all the joint owners on the basis of Article 1242 of the French Civil Code. With an easement, custody often follows the person who actually controls the path, often the beneficiary responsible for maintenance. In both cases, setting out maintenance obligations in writing and taking out insurance expressly covering the path remains the best protection.

Is a notary needed to create or change the regime of a path shared between neighbours? Yes, whenever the operation concerns a right in rem over real property. The creation of a contractual easement, a joint ownership agreement within the meaning of Articles 1873-1 et seq. of the French Civil Code, or the conversion of joint ownership into an easement after partition, require a notarial deed and registration with the land registry. This formalisation ensures enforceability against future buyers and permanently secures relations between neighbours.