Servitude in civil law

Last updated

A servitude is a qualified beneficial interest severed or fragmented from the ownership of an inferior property (servient estate ) and attached to a superior property (dominant estate) or to some person (personal beneficiary) other than the owner. [1] At civil law, ownership (dominium) (e.g. of land) is the only full real right whereas a servitude is a subordinate real right on par with wayleaves, real burdens (i.e. real covenants), security interests, and reservations. There are two types: [2] predial, attaching to property, and personal, attaching to a person.

Contents

A servitude cannot impose the performance of a positive duty on the owner of the burdened property but only duties either to refrain from exercising certain rights to which an owner could be otherwise entitled (negative servitude) or to suffer certain things to be done to his property which an owner otherwise could be entitled to forbid or resist (positive servitude). Servitudes arise from express agreement, adverse possession, or as a matter of law.

Predial servitude

A predial (Brit. praedial) servitude is an incorporeal hereditament burdening a servient estate (praedium serviens) for the benefit of a dominant estate (praedium dominans) to protect the holder in his own rights to the use or enjoyment of property. The two estates must belong to different bare title holders (dominus nudea proprietatis, i.e. fee simple owners). This type of servitude may only burden immovable property (i.e. real property). The right is for the benefit of the dominant estate rather than the person [3] and remains in effect upon its transfer, that is, it runs with the land and extends to any owner, whether the original or successor-in-title. Predial servitudes are limited to:

Predial servitudes are generally characterized as:

When a servient estate exists but the servient owner cannot be determined, and where the law allows, a dominant owner may be granted a servitude right a non domino, i.e. absent the servient owner. In this event, the dominant owner will generally not be indemnified by the land registry for the statutory prescriptive period.

Benefitting enclaves

Originally, enclave was a term of property law, across much of Europe, particularly seen early in 15th century France derived from earlier ecclesiastical senses, for the situation of a main estate of land or a parcel of land surrounded by land owned by a different owner(s), and that could not be reached for its exploitation in a practical and sufficient manner without crossing the surrounding land. [4] In law, this created a servitude [5] of passage for the benefit of the owner of the surrounded land.

Personal servitude

A personal servitude is an interest that benefits its holder personally or financially with or without the use or enjoyment of property. In this case, there is no dominant estate, only a personal beneficiary, and therefore the servitude is in principle not assignable or inheritable, unless transferability is part of the original grant or results from economic purposes that the servitude is designed to serve. Instead, the servitude moves with a particular person, not with a specific property, and includes:

Napoleonic civil-law countries do not generally recognize personal servitudes. The mixed jurisdictions of Quebec and Louisiana are exceptions due to influence from common law, but under these systems personal servitudes are limited to easements in gross.

Quebec

Under Quebec law, a servitude is a real right excluding third parties and which is created sui generis , by agreement (ex contractu), or by operation of law (ex lege). Quebec Civil Code, article 1177 provides:

A servitude is a charge imposed on an immovable, the servient land, in favour of another immovable, the dominant land, belonging to a different owner. [...]

Quebec law distinguishes between predial and personal servitudes.

See also

Related Research Articles

Property law is the area of law that governs the various forms of ownership in real property (land) and personal property. Property refers to legally protected claims to resources, such as land and personal property, including intellectual property. Property can be exchanged through contract law, and if property is violated, one could sue under tort law to protect it.

Personal property is property that is movable. In common law systems, personal property may also be called chattels or personalty. In civil law systems, personal property is often called movable property or movables—any property that can be moved from one location to another.

Ownership is the state or fact of legal possession and control over property, which may be any asset, tangible or intangible. Ownership can involve multiple rights, collectively referred to as title, which may be separated and held by different parties.

In common law and statutory law, a life estate is the ownership of immovable property for the duration of a person's life. In legal terms, it is an estate in real property that ends at death when ownership of the property may revert to the original owner, or it may pass to another person. The owner of a life estate is called a "life tenant".

This aims to be a complete list of the articles on real estate.

An estate in land is, in the law of England and Wales, an interest in real property that is or may become possessory. It is a type of personal property and encompasses land ownership, rental and other arrangements that give people the right to use land. This is distinct from sovereignty over the land, which includes the right to government and taxation.

Usufruct is a limited real right found in civil-law and mixed jurisdictions that unites the two property interests of usus and fructus:

A profit, in the law of real property, is a nonpossessory interest in land similar to the better-known easement, which gives the holder the right to take natural resources such as petroleum, minerals, timber, and wild game from the land of another. Indeed, because of the necessity of allowing access to the land so that resources may be gathered, every profit contains an implied easement for the owner of the profit to enter the other party's land for the purpose of collecting the resources permitted by the profit.

An equitable servitude is a term used in the law of real property to describe a nonpossessory interest in land that operates much like a covenant running with the land. In England and Wales the term is defunct and in Scotland it has very long been a sub-type of the Scottish legal version of servitudes, which are what English law calls easements. However covenants and equitable servitudes in most of the jurisdictions across North America, are slightly different. The usual distinction is based on the remedy plaintiff seeks and precedent will allow for the scenario in question. Where the terms are unmerged, holders of a covenant seek money damages; holders of equitable servitudes seek injunctions. The term used to exist in England widely before Tulk v Moxhay and as byproduct of the Judicature Acts became one of the fullest mergers of equity and common law in England and Wales so as to agree initially on the term "equitable covenant", then coming to be united in the term covenant save that "equitable" bears a particular meaning in English property rights since at least 1925: it means not fully compliant with registration/written formalities. If lacks legally routine formalities it is not a full legal covenant and therefore more tenuous, often only enforceable personally and against the original covenantor.

A covenant, in its most general sense and historical sense, is a solemn promise to engage in or refrain from a specified action. Under historical English common law, a covenant was distinguished from an ordinary contract by the presence of a seal. Because the presence of a seal indicated an unusual solemnity in the promises made in a covenant, the common law would enforce a covenant even in the absence of consideration. In United States contract law, an implied covenant of good faith is presumed.

A dominant estate is the parcel of real property that has an easement over another piece of property. The type of easement involved may be an appurtenant easement that benefits another parcel of land, or an easement appurtenant, that benefits a person or entity. The easement may also be an affirmative easement, that permits a person to do something on the servient estate, or a negative easement that allows the holder of the easement to restrict activity on the servient estate. Estate is a common law concept.

<i>Re Ellenborough Park</i>

Re Ellenborough Park[1955] EWCA Civ 4 was an English land law case which reformulated the tests for an easement. It found an easement to use a communal garden to be a valid easement in law. There is no requirement for all of the houses to be immediately next to the garden to benefit from it.

An easement is a nonpossessory right to use and/or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B". An easement is a property right and type of incorporeal property in itself at common law in most jurisdictions.

Ius in re, or jus in re, under civil law, more commonly referred to as a real right or right in rem, is a right in property, known as an interest under common law. A real right vests in a person with respect to property, inherent in his relation to it, and is good against the world. The primary real right is ownership (dominium). Whether possession (possessio) is recognized as a real right, or merely as a source of certain powers and actions, depends on the legal system at hand. Subordinate or limited real rights generally refer to encumbrances, rights of use and security interests. The term right in rem is derived from the action given to its holder, an actio in rem. In Latin grammar the action against the thing demands a fourth case. The underlying right itself, ius in re, has a fifth case, as the right rests on, or burdens, the thing. By mistake the common law terminology now uses the fourth case for describing the right itself. Compare jus ad rem.

Moncrieff v Jamieson [2007] UKHL 42 is a Scottish property law case decided by the House of Lords on servitudes.

Easements in English law are certain rights in English land law that a person has over another's land. Rights recognised as easements range from very widespread forms of rights of way, most rights to use service conduits such as telecommunications cables, power supply lines, supply pipes and drains, rights to use communal gardens and rights of light to more strained and novel forms. All types are subject to general rules and constraints. As one of the formalities in English law express, express legal easements must be created by deed.

<span class="mw-page-title-main">English land law</span> Law of real property in England and Wales

English land law is the law of real property in England and Wales. Because of its heavy historical and social significance, land is usually seen as the most important part of English property law. Ownership of land has its roots in the feudal system established by William the Conqueror after 1066, and with a gradually diminishing aristocratic presence, now sees a large number of owners playing in an active market for real estate.

<span class="mw-page-title-main">South African property law</span> Important aspects of redistribution agreement

South African property law regulates the "rights of people in or over certain objects or things." It is concerned, in other words, with a person's ability to undertake certain actions with certain kinds of objects in accordance with South African law. Among the formal functions of South African property law is the harmonisation of individual interests in property, the guarantee and protection of individual rights with respect to property, and the control of proprietary relationships between persons, as well as their rights and obligations. The protective clause for property rights in the Constitution of South Africa stipulates those proprietary relationships which qualify for constitutional protection. The most important social function of property law in South Africa is to manage the competing interests of those who acquire property rights and interests. In recent times, restrictions on the use of and trade in private property have been on the rise.

<span class="mw-page-title-main">Real property</span> Legal term; property consisting of land and the buildings on it

In English common law, real property, real estate, immovable property or, solely in the US and Canada, realty, is land which is the property of some person and all structures integrated with or affixed to the land, including crops, buildings, machinery, wells, dams, ponds, mines, canals, roads, and other things. The term is historic, arising from the now-discontinued form of action, which distinguished between real property disputes and personal property disputes. Personal property, or personalty, was, and continues to be, all property that is not real property.

<span class="mw-page-title-main">Servitude (Roman law)</span> Roman law on servitudes

In Roman law, the praedial servitude or property easement, or simply servitude (servitutes), consists of a real right the owners of neighboring lands can establish voluntarily, in order that a property called servient lends to other called dominant the permanent advantage of a limited use. As use relations, servitudes are fundamentally solidary and indivisible rights, the latter being what causes the servitude to remain intact despite the fact that any property involved may be divided. Furthermore, there is no possibility of acquisition or partial extinction.

References

  1. R.C. Elliott, The South African Notary, 6th edn. (Cape Town: Juta, 1987), 168.
  2. A. N. Yiannopoulos, Predial Servitudes, sections 3-12 (3d ed. 2004)
  3. La. Civ. Code Ann. Art. 646 (West 2007)
  4. Le Grand Robert, Dictionnaire de la Langue Française, 2001, vol. III, p. 946.
  5. Webster's Encyclopedic Unabridged Dictionary of the English Language. 1989. p. 1304. Servitude: Law. A right possessed by one person with respect to another's property, consisting either of a right to use the other's property, or a power to prevent certain uses of it.