What Are Servitudes In Property Law?
A servitude is a type of property interest that is created when an individual or legal entity, called the “servient estate,” grants another individual or entity, called the “dominant estate,” the right to use and enjoy a portion of the servient estate.
The dominant estate doesn’t actually own the portion of the servient estate that it is using, but it has the right to use it in any way that it pleases. The servient estate may also impose limitations on the use of the dominant estate’s portion of the servient estate.
Servitudes arise in a number of different ways. One common way is when a person purchases a property that has an existing servitude.
For example, a homeowner might purchase a property that is subject to a restrictive covenant that limits the types of improvements that can be made to the property. Another common way for servitudes to arise is when a property is developed.
In this case, the developer might grant a servitude to a utility company in order to allow the company to install utility lines on the property.
There are a number of different types of servitudes, but the most common are easements and covenants. An easement is a right of use that is granted to a person or entity for a specific purpose, such as the right to cross over someone else’s property in order to get to your own property.
A covenant is a type of restriction that is placed on a property in order to ensure that the property is used in a certain way. For example, a developer might place a covenant on a property that prohibits the property from being used for commercial purposes.
A servitude can be created over an immovable property only, and it is enforceable against all owners, whether developers or successors. It will remain attached to the property even if sold.
What Are The Two Types Of Servitudes?
- Predial servitudes – servitude must be attached to the land, not the building. This means it can run with a property even if it is subdivided. Also, the servitude can be enforced against new owners if it is registered against the property at Land Registry.
If a servitude is not attached to the land, it is personal or in gross. This means it cannot run with property or be forced on a property buyer. However, such personal servitudes are enforceable by a specific individual.
- Personal servitudes: are more recent in origin, attaching to people rather than land, providing personal rights of use or residence over another’s immovable properties. Also, contrary to predial servitudes, personal servitudes are terminable by their very nature.
They expire either at the holder’s death or on a specific event such as the sale of immovable property. A person exercising a personal servitude over immovable property is called a personal servitude holder. A personal servitude may have an express or implied term and be limited in time, with or without further terms.
What Is The Difference Between Real Covenants And Equitable Servitudes?
- A covenant is an agreement between two parties in common law or equity. It creates a right that secures the performance of some future obligation. For example, a mortgage is such a covenant.
An equitable servitude is a right created by the court to secure the performance of an existing obligation, for example, by charging interest on late payment under conditions determined by the court.
- A real covenant is binding in equity and law. An equitable servitude is not a covenant but a remedy for breach of covenant, for example, by calculating interest on late payment as aforesaid. Also, an equitable servitude is not enforceable in the same way as a real covenant in law and equity.
- A real covenant is intended to be binding and enforceable by both parties, in equity and law. An equitable servitude is intended to be enforceable only by one party so as not to disturb the relationship between the two others who are bound solely by contract or law.
Do Equitable Servitudes Run With The Land?
Servitude may apply to the land just as easily as it may apply to a building on the land, but whether it does so depends on its legal nature and purpose.
Generally, servitude will not run with a property in equity and law if it is called an action for waste or possession of the soil. Still, it may be enforceable over an immovable if it constitutes servitude for using another’s property.
Normally, servitude is an equitable right against property and not against the land. As a result, servitude will not run with the land. However, this may be different in Quebec since the law includes an exemption in article 1177 of the Civil Code allowing real covenants to run with property
Do Equitable Servitudes Require Privity?
Privity is a necessary element of a contract, but it is not a necessary element of equitable servitudes. Also, with some exceptions, such as the servitudes for the use of another’s property, privity is not a necessary element of a servitude. Privity is a necessary contractual element of a real covenant.
In addition to its nature as a remedy for breach of contract, servitude can also be created by law. In this case, the person exercising the servitude will likely rely on his public interest to justify it.
Can Unregistered Servitudes Be Enforceable?
A personal servitude that is not registered may be enforced against third parties who acquire the property with knowledge of the servitude. Also, a personal servitude that is not registered will be enforceable only against the holder himself and not against his successors in title.
In Quebec, some personal servitude does not need to be registered, while others may be enforced only after registration; the Quebec civil code contains some provisions designed to protect the public interest.
How Are Servitudes Created?
- It may be created by contract in so much as the contract creates a right. However, this is not always the case if the contract is canceled before it has been carried out or fails to mention a servitude.
- It may also be created by operation of law when it is needed to protect a right. The right must be specified in legal documents such as a deed or case law.
- Finally, the creation of servitude may also come from the common law if based on the principle of abuse or necessity.
Are Easements Equitable Servitudes?
An easement entails the right to use the other’s property, a real covenant the right to require the other to undertake a land-related obligation, and an equitable servitude the right to restrict the use to which the other may put his land.
According to the common law, an easement is not a real covenant or an equitable servitude. However, according to Quebec civil law, an easement is a real covenant. It is important to note that an easement and the rights established are separate and independent.
Are Personal Servitudes Transferable?
A personal servitude may only be transferred or ceded to the owner of the land burdened by the service. The registration of a praedial servitude against immovable property favors other immovable property.
Therefore, the true right belongs to the land and not a person. Also, the personal and praedial servitudes may be transferred or ceded entirely and are not subject to any limitations; no conditions are attached to them beyond their creation.
Personal servitude is not limited and does not expire with the holder’s death or on the transfer of property. The praedial servitude does not have a limit, though it expires with the holding property.
Are Servitudes Easements?
Servitude pertains to the servient estate or burdened property, but an easement refers to the dominant estate, the land that benefits from the privilege. Although servitude and easement are frequently used interchangeably, the two notions are distinct.
Also, a personal servitude may be created to use another’s property, but this does not apply to an easement. Praedial servitudes related to the land and not to a person cannot be termed easements.
Are Servitudes Personal Rights?
A personal servitude is a right against property held by a particular individual. An individual holds this right in their individual capacity, not as an owner. It expires with the demise of the owner and cannot be transferred. Usufruct is a form of personal service.
Servitude may be a personal right if it applies to the land, just like an easement, but not always. Also, the holder of a personal servitude does not have the right to use his land as he pleases but must comply with the obligations imposed on him by law.
Can Servitudes Be Transferred?
Generally, servitude is a personal right and does not pass with the property. However, the law provides exceptions.
Firstly, servitude will be considered personal if it is necessary to protect an interest in land. In this case, an individual can transfer his interest to another person. The servitude will not transfer with the property if it is a contrarial burden or if it prevents the other from selling or leasing his land.
Secondly, servitude may be transferred as part of a general succession of rights and obligations. However, the servitude will be transferred along with all its conditions and not necessarily the same rights as previously held by the holder.
Do Equitable Servitudes Need To Be In Writing?
An equitable servitude must be made in writing unless it is a negative equitable servitude that might be assumed from a shared plan for building a residential subdivision as long as the landowners are aware of the arrangement.
A deed or other legal document is required to create a real covenant or a praedial servitude. However, not all equitable servitudes are in writing. For example, agreeing to use or abuse another’s property is not necessary, but it may be in writing.
Also, an equitable servitude may be made orally if it is a non-contradictory burden and does not contradict the servient owner’s rights.
How Are Equitable Servitudes Terminated?
- An equitable servitude may be terminated by the holder abrogating his rights or committing a serious breach of the responsibilities imposed on him by law.
- The owner of the burdened property may also terminate an equitable servitude if it has caused damages to his property, he can terminate without compensation, or he will suffer serious hardship if the servitude is not terminated.
- In addition to this, the rights and obligations provided for in an equitable servitude are not subject to any limitations other than those provided for by law or that have been agreed upon by the parties. The holder of the servitude may cede his rights to someone else.
However, an obligation imposed on a person by an equitable servitude cannot be transferred without prior consent of the person affected.
How Are Servitudes Registered?
- A servitude is registered in the registry of rights of real property.
- Although a servitude may be created without a written agreement, it must be made in writing when registered, and the registration must include all the rules.
- A servitude becomes part of the general public domain and may be enforced by any person who has an interest in seeing that it is respected as long as he has an interest in the land at issue.
- The holder of the servitude may also be required to post a bond protecting the servitude from being violated by a third party.
- The registrar of rights is responsible for evaluating the validity of the registration and collecting fees for this service. This body also decides whether it will register land titles and whether or not it will enforce a servitude registered by another person before proceeding with the application.
What Are Praedial Servitudes?
This refers to a service, burden, or charge provided for the benefit of a tract of land affecting and exerted against another tract and approximating the easement at common law against a servient tenement in favor of a dominant tenement.
Praedial servitudes are those that affect the use of land and other real property, such as forests, pastures, farms, ranches and commercial or industrial buildings.
What Does It Mean For Servitude To Run With The Land?
This refers to mechanism that binds rights and duties to ownership or occupancy of land so that they pass to subsequent owners and occupants.
The servitude is said to run with the land if it remains in force as long as the property remains in existence and has no time limit. Also, there is no need to transfer the servitude if it does not have an ending term.