Servitude in Civil Law - Predial Servitude

Predial Servitude

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:

• nonposessory interests: easements appurtenant, whether 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
• indivisible - 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.

When a servient estate exists but the servient owner cannot be determined, and where the law allows, a dominant owner may be granted a servitude right a non domino, i.e. absent the servient owner. In this event, the dominant owner will generally not be indemnified by the land registry for the statutory prescriptive period.