Know your servitudes: personal vs praedial

In this post we look at servitudes. We will explain what they are and the different types.  Depending on where you live, servitudes can really affect you. Read on, and if you are facing any problems in the area of servitudes, please do not hesitate to contact us (see below)!

What is a servitude?

A servitude is a registered right that one person has over the (servient) property of another. It allows the holder of that right to be able to do something with the other person’s property. This may even infringe on the rights of the owner of that property. For this reason, a servitude diminishes the rights of the owner of the servient property. The word “servitude” implies that some property actually “serves” either another property (praedial servitude) or another person (personal servitude).

A servitude holder is entitled to unrestricted enjoyment of his or her servitude. However, the servitude holder must exercise those rights in a manner that is considerate to the owner of the servient land. The servitude should not cause burden on the servient land beyond what is expressly or tacitly allowed by the servitude.

Types of servitudes

There are two main categories of servitudes. These are praedial servitudes and personal servitudes.

Praedial servitudes

In the case of a praedial servitude, the right is held by the owner of a piece of land, the dominant land. This right is held over a servient property. A person has the right by virtue of being owner of the property. The servitude is inseparably attached to the land. A praedial servitude is constituted in favour of successive owners of the land. That is, should a person sell the dominant property, the new owner gains the servitude because he or she is now the owner of the land. Similarly, if the ownership of the servient land passes, the servitude still stands and the new owner of the servient land has to honour it.

An example of a praedial servitude is a servitude of light. This right guarantees access of light from another’s land, unimpeded by buildings or trees.

Personal servitude

A personal servitude is a right against property that is in favour of a specific individual. This right is held by a person in their personal capacity and not in the capacity of owner. It extinguishes on the death of that individual and cannot be transferred.

An example of a personal servitude is a usufruct. A usufruct is a right to use and enjoy another’s property. A person can have a usufruct over another’s home and therefore have the right to use and enjoy that home to the limitation of the owner of that home.

How to tell if there is a servitude registered over a property?

You can examine the title deed of the property to determine whether there are any servitudes over the property. If you are unsure how to do this, ask a legal professional.

Need help?

Need help in this field? Or are you looking to register a servitude or cancel one? We can assist you in these matters. Please do not hesitate to contact us at info@gunstons.com.

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