Servitude in civil law
Encyclopedia
A servitude is a beneficial interest
detaching some of the right
s in some particular property
(burdened property) that do not affect possession
but concern uses by another and conferring those rights either on some person
(personal beneficiary) other than the owner
or on some other property (benefited property). At Civil law
, ownership is the only full right whereas a servitude is a suborinate real right
on par with real burdens, building restrictions, wayleaves, security interest
s, and reservations. There are two types: predial, attaching to property, and personal, attaching to a person.
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.
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 dominium owners (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 and remains in effect upon its transfer, that is, it runs with the land and extends to any owner, whether the original or successor. Examples include:
Predial servitudes are generally characterized as:
law, a servitude is a real right
excluding third parties and which is created sui generis
, by agreement, or by opertion of law (ex lege). Quebec Civil Code
, article 1177 provides (in transation):
Quebec law distinguishes between praedial and personal servitudes.
Interest
Interest is a fee paid by a borrower of assets to the owner as a form of compensation for the use of the assets. It is most commonly the price paid for the use of borrowed money, or money earned by deposited funds....
detaching some of the right
Right
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory...
s in some particular property
Property
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
(burdened property) that do not affect possession
Ownership
Ownership is the state or fact of exclusive rights and control over property, which may be an object, land/real estate or intellectual property. Ownership involves multiple rights, collectively referred to as title, which may be separated and held by different parties. The concept of ownership has...
but concern uses by another and conferring those rights either on some person
Person
A person is a human being, or an entity that has certain capacities or attributes strongly associated with being human , for example in a particular moral or legal context...
(personal beneficiary) other than the owner
Ownership
Ownership is the state or fact of exclusive rights and control over property, which may be an object, land/real estate or intellectual property. Ownership involves multiple rights, collectively referred to as title, which may be separated and held by different parties. The concept of ownership has...
or on some other property (benefited property). At Civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
, ownership is the only full right whereas a servitude is a suborinate real right
Ius in re
ius 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 prevails against all the world. The primary real rights...
on par with real burdens, building restrictions, wayleaves, security interest
Security interest
A security interest is a property interest created by agreement or by operation of law over assets to secure the performance of an obligation, usually the payment of a debt. It gives the beneficiary of the security interest certain preferential rights in the disposition of secured assets...
s, and reservations. There are two types: predial, attaching to property, and personal, attaching to a person.
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
Agreement
Agreement may refer to:* Agreement or concord, cross-reference between parts of a phrase* Gentlemen's agreement, not enforceable by law* Contract, enforceable in a court of law...
, adverse possession
Adverse possession
Adverse possession is a process by which premises can change ownership. It is a common law concept concerning the title to real property . By adverse possession, title to another's real property can be acquired without compensation, by holding the property in a manner that conflicts with the true...
, or as a matter of law.
Predial servitude
A predial (Brit. praedial) servitude is an incorporealIncorporeal
Incorporeal or uncarnate means without the nature of a body or substance . The idea of incorporeality refers to the notion that there is an incorporeal realm of existence, or "place", that is distinct from the corporeal or material universe. Incorporeal beings or objects are not made out of matter...
hereditament
Hereditament
In law, a hereditament is any kind of property that can be inherited.Hereditaments are divided into corporeal and incorporeal...
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 dominium owners (dominus nudea proprietatis, i.e. fee simple
Fee simple
In English law, a fee simple is an estate in land, a form of freehold ownership. It is the most common way that real estate is owned in common law countries, and is ordinarily the most complete ownership interest that can be had in real property short of allodial title, which is often reserved...
owners). This type of servitude may only burden immovable property (i.e. real property
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
). The right is for the benefit of the dominant estate rather than the person and remains in effect upon its transfer, that is, it runs with the land and extends to any owner, whether the original or successor. Examples include:
- nonposessory interestsNonpossessory interest in landA nonpossessory interest in land is a term of the law of property to describe any of a category of rights held by one person to use land that is in the possession of another...
: easementEasementAn easement is a certain right to use the real property of another without possessing it.Easements are helpful for providing pathways across two or more pieces of property or allowing an individual to fish in a privately owned pond...
s appurtenant, public or private.
Predial servitudes are generally characterized as:
- permanent - the interest is effective for as long as ownership continues, that is, in perpetuity or for a fixed term of years;
- accessory - servitudes are inseparable from the dominant estate and run with it, and the property interest cannot be conveyed, leased, or encumbered separately from the dominant estate; and
- indivisable - the servitude burdens the whole servient estate and benefits the whole dominant estate; the servitude runs in benefit of each subdivided estate resulting from the partition of the dominant estate, and this does not result in an additional burden for each subdivision on the servient estate.
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:- easements in gross;
- life interestLife interestA life interest is some form of right, usually under a trust, which lasts only for the lifetime of the person benefiting from that right. A person with a life interest is known as a life tenant....
s: rights of use (usus), habitation (habitatio), and usufructUsufructUsufruct is the legal right to use and derive profit or benefit from property that either belongs to another person or which is under common ownership, as long as the property is not damaged or destroyed...
; - limited interests: right of pre-emption, right of emption.
Quebec
Under QuebecQuebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
law, a servitude is a real right
Ius in re
ius 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 prevails against all the world. The primary real rights...
excluding third parties and which is created sui generis
Sui generis
Sui generis is a Latin expression, literally meaning of its own kind/genus or unique in its characteristics. The expression is often used in analytic philosophy to indicate an idea, an entity, or a reality which cannot be included in a wider concept....
, by agreement, or by opertion of law (ex lege). Quebec Civil Code
Civil Code of Quebec
The Civil Code of Quebec is the civil code in force in the province of Quebec, Canada. The Civil Code of Quebec came into effect on January 1, 1994, except for certain parts of the book on Family Law which were adopted by the National Assembly in the 1980s...
, article 1177 provides (in transation):
- A servitude is a burden against an immovable, the servient estate, for the benefit of another immovable, the dominant estate, belonging to a different owner. [...]
Quebec law distinguishes between praedial and personal servitudes.
- A praedial servitude is a perpetual real right in the property of another (the servient estate) which confers on the owner of the dominant estate, in principle, permanent, specific entitlements of use and enjoyment of the servient estate.
- A personal servitude is a limited real right granting the holder specific entitlements of use and enjoyment of a thing personal (movable) or real (immovable) of another in his personal capacity for a specific period of time, or for his lifetime or, in the case of a legal person, for a maximum of 100 years.