The issues related to land and personal servitudes are regulated by the provisions of the civil law. Notwithstanding the fact that both types of servitudes are related to property, they fulfill different functions. Consequently, the provisions governing them are of different character.
Land servitudes are intended to increase the usability of the property which they are established on. In line with article 285 §1 of the Civil Code, the land servitudes consist in encumbering a given property (the so-called “servient property”) to the benefit of the owner of other property (the so-called “dominant property”). There are three essential instantiations:
- The owner of the dominant property is entitled to use of servient property within
a predefined scope
- The owner of the servient property is limited in his right to undertake certain actions regarding the property within a predefined scope
- The owner of the servient property is prohibited from undertaking certain actions regarding the property, to which he or she is normally entitled by virtue of the ownership right
On top of that, servitudes fall into two categories: passive servitudes – consisting in tolerating a specific action by the entitled person (e.g. forbiddance of erecting a building on a given plot of land) and active servitudes – consisting in entitling a person to undertake a certain actions (e.g. water-drawing servitude or road servitude). The catalogue of servitudes is of non-exhaustive character. They are also subject to expiration through disuse, annulment, renunciation etc.
Personal servitudes consist in encumbering a property to the benefit of an individual person – only a natural person – since legal persons are not allowed to be a beneficent of servitude. The general purpose of the foregoing is to satisfy the personal needs of the entitled party. It is commonplace that the legal source of the servitude is simply the agreement concluded between the owner of the property and the individual – a natural person. However, it may also be provided for otherwise, for example through testamentary disposition.
The scope of this servitude, in line with article 289 of the civil code, is determined taking into account the needs of the entitled party, as well as the principles of community life and the local customs. Importantly enough, this limited property right is also limited in time and it expires with the death of the entitled party at the latest. As a consequence, this right cannot be transferred onto other person – as stipulated in article 300 of the Civil Code.
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