Civil Code > TITLE VIII JOINT OWNERSHIP, USUFRUCT AND OTHER RIGHTS IN RAM 3

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Chapter 3. Servitudes

Art. 1359.- Definition.

(1) A servitude is a charge encumbering a land, hereinafter called the servient tenement, for the benefit of another land, hereinafter called the dominate tenement.

(2) A servitude imposes on the owner of the servient tenement the obligation to submit to the commission of some acts by the owner of the dominant tenement or to refrain from exercising some rights inherent in ownership.

Art. 1360.- Obligation to do.

A servitude may only accessorily cast upon the servient owner the burden to commit any act.

Art. 1361.- Change of owner.

(1) A servitude shall run with the land notwithstanding that the servient or dominant owner changes.

(2) Servitudes which have been registered in accordance with law shall follow the land into whatever hands it may pass.

Art. 1362.- Creation of servitude. 1.- Contract or will.

(1) A servitude may be created by agreement between the dominant and servient owner.

(2) It may be created by a will in which the owner of a land divides such land between two or more persons.

Art. 1363.- 2. Creation evidenced by writing.

The creation of a servitude shall be of no effect unless it is evidenced by writing.

Art. 1364. 3. Effect on third parties.

A servitude shall be of no effect on third parties unless it has been entered in the register of immovables at the place where the servient tenement is situate.

Art. 1365.- Interpretation of doubtful clauses.

Where it is doubtful whether a provision in an instrument creates a servitude running with the land or imposes a personal obligation on the owner of such land. Such equivocal provision shall be deemed to impose a personal obligation and not to create a servitude.

Art. 1366.- Acquisition of servitude by prescription-1. Apparent servitude.

(1) An apparent servitude may be acquired by enjoyment for ten years.

(2) A servitude is apparent where its existence is evidenced by some apparent sign.

Art. 1367.- 2. Non-apparent servitude.

A servitude which is not apparent may not be acquired by prescription.

Art. 1368.- 3. Effect on third parties.

(1) Whosoever has acquired an apparent servitude by prescription may require that the existence of the servitude be evidenced by an instrument specifying the extent of the servitude and that such servitude be entered in the register of immovables.

(2) A servitude acquired by prescription shall not affect third parties unless it has been entered in the register of immovables.

Art. 1369.- License.

(1) AA license to use a land in a particular manner shall not be deemed to be a servitude for the benefit of the person to whom such licenses was given.

(2) The person who has given such license may revoke it at nay time.

Art. 1370.- Extent of servitude.

(1) The rights and obligations created by a servitude shall be as specified in the entry of such servitude in the register of immovables.

(2) Within the limits specified in sub-art, (1), the extent of a servitude may be ascertained having regard to the manner in which the servitude was created or peacefully enjoyed in good faith for a long period of time.

(3) In cases of doubt, the rights and obligations created by a servitude shall e governed by the provisions of the following Articles.

Art. 1371.- Rights of way and rural servitudes.

(1) Rights of way such as the right to traverse a parcel of land on foot, with animals, during the dead season, across fields or out of a wood shall be of such extent as is recognized by local custom.

(2) Rights of pasture, wood-cutting, watering animals, irrigation and other rural servitudes shall have the same extent.

Art. 1372.- Means necessary for the enjoyment of servitude.

(1) he existence of a servitude shall entail the existence of the means necessary for the enjoyment of such servitude.

(2) Whosoever benefits by a right to draw water from a well shall enjoy a right of way to such well.

Art. 1373.- Necessary works. 1. Principle.

(1) The dominant owner may take nay steps and construct any works necessary for the enjoyment and preservation of the servitude.

(2) Unless otherwise provided in the instrument creating the servitude, such works shall be constructed at the expense of the dominant owner.

Art. 1374.- 2. Surrender of servient tenement.

Where works as defined in Art. 1373 are under the instrument creating the servitude to be done at the expense of the servient owner, the latter may relieve himself of such obligation by surrendering to the dominant owner the whole servient tenement or such part thereof as is necessary for the enjoyment of the servitude.

Art. 1375.- Duties of dominant owner.

(1) The dominant owner shall exercise his rights so as to cause minimum inconvenience to the servient owner.

(2) He shall exercise his rights in accordance with the instrument creating the servitude and may not make o the dominant of servient tenement any alteration which would increase the burden of the servitude.

Art. 1376.- New needs of dominant tenement.

New needs occurring for the dominant tenement shall not increase the burden of the servitude.

Art. 1377.- Division of dominant tenement.

(1) Where the dominant tenement is divided, the servitude shall be maintained for the benefit of the owner of each new parcel but the burden of the servitude may not be increased in consequence thereof.

(2) For instance, all the dominant owners who benefit by a right of way shall traverse the servient tenement at the same place.

(3) Where the servitude benefits one parcel only, the servient owner may require that the corresponding entry be struck off the register of immovable as regards the other parcels.

Art. 1378.- Division of servient tenement.

(1) Where the servient tenement is divided, the servitude shall remain annexed to each new parcel of land.

(2) Where the servitude can materially not be exercised on a parcel, the owner thereof may require that it be struck off the register of immovabels as regards his parcel of land.

Art. 1379.- Duties of servient owner.

The servient owner may do nothing to reduce or impair the use of the servient tenement.

Art. 1380.- Changing extent of servitude.

Where a servitude is exercised on a part only of the servient tenement the servient owner may, in appropriate case and provided be pays all the expenses thereby occasioned, require that the servitude be exercised on such other part of the servient tenement as will be equally convenient to the dominant owner.

Art. 1381.- Extinguishment of servitude.

(1) A servitude entered in the register of immovables shall be extinguished where the entry is cancelled.

(2) An application for the cancellation of the entry may be made where the dominant owner has expressly released the servitude and such release is evidenced by writing.

(3) Such an application may also be made in respect of an apparent servitude where the apparent signs which evidenced its existence have disappeared or it has not been exercised for ten years.

Art. 1382.- Partial extinguishments.

A servitude may be extinguished by prescription in the same manner as it was created.

Art. 1383.- Redeeming servitude. -1. When possible.

A servitude may be redeemed where:

(a) it is contrary to the interests of the national economy or some other public interest; or

(b) the benefits it entails for the dominant tenement are out of proportion with the inconvenience or damage it occasions to the servient tenement.

Art. 1384.- 2. How done.

(1) Failing agreement between the parties, the redeeming of a servitude shall be ordered by the court on the application of the servient owner.

(2) the court shall fix the amount of compensation (if any) due.

(3) In fixing such amount, the court shall have regard to all the circumstances of the case, in particular the date on which the servitude was created and the change which the servitude occasions to the value of the dominant and servient tenements.

Art. 1385.- Provision excluding redemption.

The parties may, in the instrument creating a servitude or in a subsequent instrument, exclude for a period not exceeding ten years the right to apply to the court for the redemption of such servitude.

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