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Concept
Servitude in civil law
Summary
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. 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: 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.
Servitude (Roman law)
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 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:
nonpossessory interests: easements appurtenant, whether public or private.
Official source
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