|Written by Me Sébastien Fiset , LL.B., B.A.A.|
|Friday, 11 June 2010 07:31|
(Last update June 7, 2010)
NATURE OF SERVITUDES
1177. 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.
Under the charge the owner of the servient land is required to tolerate certain acts of use by the owner of the dominant land or himself abstain from exercising certain rights inherent in ownership.
A servitude extends to all that is necessary for its exercise.
1178. An obligation to perform an act may be attached to a servitude and imposed on the owner of the servient land. The obligation is an accessory to the servitude and can only be stipulated for the service or exploitation of the immovable.
1179. Servitudes are either continuous or discontinuous.
Continuous servitudes, such as servitudes of view or of no building, do not require the actual intervention of the holder.
Discontinuous servitudes, such as pedestrian or vehicular rights of way, require the actual intervention of the holder.
1180. Servitudes are either apparent or unapparent.
A servitude is apparent if it is manifested by an external sign; otherwise it is unapparent.
1181. A servitude is established by contract, by will, by destination of proprietor or by the effect of law.
It may not be established without title, and possession, even immemorial, is insufficient for this purpose.
1182. Servitudes are not affected by the transfer of ownership of the servient or dominant land. They remain attached to the immovables through changes of ownership, subject to the provisions relating to the publication of rights.
1183. Servitude by destination of proprietor is evidenced in writing by the owner of the land who, in contemplation of its future parcelling, immediately establishes the nature, scope and situation of the servitude on one part of the land in favour of other parts.
EXERCISE OF SERVITUDES
1184. The owner of the dominant land may, at his own expense, take the measures or make all the works necessary for the exercise and preservation of the servitude unless otherwise stipulated in the act establishing the servitude.
At the end of the servitude he shall, at the request of the owner of the servient land, restore the place to its former condition.
1185. The owner of the servient land, charged by the title with making the necessary works for the exercise and preservation of the servitude, may free himself of the charge by abandoning the entire servient land or any part of it sufficient for the exercise of the servitude to the owner of the dominant land.
1186. In no case may the owner of the dominant land make any change that would aggravate the situation of the servient land.
In no case may the owner of the servient land do anything that would tend to diminish the exercise of the servitude or to render it less convenient. However, he may, at his own expense, provided he has an interest in doing so, transfer the site of the servitude to another place where its exercise will be no less convenient to the owner of the dominant land.
1187. If the dominant land is divided, the servitude remains due for each portion, but the situation of the servient land may not thereby be aggravated.
Thus, in the case of a right of way, all owners of lots resulting from the division of the dominant land shall exercise it over the same place.
1188. Division of the servient land does not affect the rights of the owner of the dominant land.
1189. Except in the case of land enclosed by that of others, a servitude of right of way may be redeemed where its usefulness to the dominant land is out of proportion to the inconvenience or depreciation it entails for the servient land.
Failing agreement, the court, if it grants the right of redemption, fixes the price, taking into account, in particular, the length of time for which the servitude has existed and the change of value entailed by the servitude both in favour of the servient land and to the detriment of the dominant land.
1190. The parties may, in writing, exclude the possibility of redeeming a servitude for a period of not over 30 years.
EXTINCTION OF SERVITUDES
1191. A servitude is extinguished
(1) by the union of the qualities of owner of the servient land and owner of the dominant land in the same person;
(2) by the express renunciation of the owner of the dominant land;
(3) by the expiry of the term for which it was established;
(4) by redemption;
(5) by non-user for 10 years.
1192. In the case of discontinuous servitudes, prescription begins to run from the day the owner of the dominant land ceases to exercise the servitude and in the case of continuous servitudes, from the day any act contrary to their exercise is done.
1193. The mode of exercising a servitude may be prescribed just as the servitude itself, and in the same manner.
1194. Prescription runs even where the dominant land or the servient land undergoes a change of such a kind as to render exercise of the servitude impossible.
Last Updated on Friday, 11 June 2010 07:34