This information is for reference only and is not legal advice. Consult a licensed lawyer before any transaction.
Civil and Commercial Code - Servitude
Civil and Commercial Code ss.1387-1401
The information is reviewed and updated monthly against official sources.
In short
A registered right under which one plot is permanently burdened for a neighbouring plot (access, passage, utilities). The burden passes with the land.
1387: Nature of a servitude
One piece of immovable property (the servient land) can be legally burdened for the benefit of another piece of land (the dominant land). The owner of the servient land must either tolerate certain uses or refrain from exercising some ownership rights, so the dominant land gains a lasting advantage.
1388: No increase of burden by dominant owner
The person who benefits from the servitude cannot modify either plot in a way that adds extra weight or inconvenience to the servient land beyond what was originally agreed when the servitude was set up.
1389: Changed needs do not justify heavier burden
Even if the dominant owner's requirements evolve over time, such change does not automatically grant a right to place a heavier or different burden on the neighboring servient property than what was initially established.
1390: Servient owner must not reduce usefulness
The owner of the burdened land is prohibited from taking any action that would lessen the practical value of the servitude or make its use less convenient for the party who benefits from it.
1391: Maintenance costs and shared benefit
The beneficiary of the servitude may carry out necessary works at their own cost, causing minimal harm to the burdened land, and must keep such works in good repair; if the servient owner also benefits, costs are shared proportionally.
1392: Relocating the servitude within the servient land
If the servitude only affects part of the burdened land, its owner may request moving it to another part of the same property, provided this serves their own interest, they cover the cost, and it remains equally convenient for the beneficiary.
1393: Servitude attached to the dominant land
Unless the founding document states otherwise, a servitude automatically transfers along with the dominant property whenever it is sold or encumbered, and it cannot be separated or transferred independently from that property.
1394: Effect of dividing the servient land
When the burdened land is split into several parcels, the servitude generally continues to apply to every new parcel; however, an owner of a parcel where the servitude cannot realistically be used may ask to be released from it.
1395: Effect of dividing the dominant land
If the benefiting land is divided, the servitude remains in force for every resulting parcel; but if it clearly cannot serve one particular parcel, the servient owner may request that this parcel be excluded from the benefit.
1396: Servitude acquired by one co-owner benefits all
When land is jointly owned and one co-owner obtains or exercises a servitude right, the law treats this as if all co-owners of that dominant property had acquired or exercised the same right together.
1397: Termination by total destruction
A servitude automatically comes to an end if either the burdened land or the benefiting land is completely destroyed, since the legal relationship depends on the continued physical existence of both properties.
1398: Merger of ownership in one person
If both the burdened and the benefiting properties end up owned by the same person, that owner may cancel the servitude's registration; until cancellation occurs, the servitude still binds and remains enforceable against third parties.
1399: Extinction through ten years' non-use
A registered servitude lapses automatically if it remains unused for a continuous period of ten years, regardless of the reason for the lack of use, effectively removing the burden from the servient property.
1400: Loss of purpose and disproportionate burden
A servitude ends once it no longer benefits the dominant land, though it can revive if circumstances change again within the prescription period; if the remaining benefit is minor compared to the burden, the servient owner may seek relief by paying compensation.
1401: Acquisition of servitude by prescription
A servitude right can also arise through long, continuous exercise of the corresponding practice over time, following the same general rules on acquisitive prescription that apply to other property rights under this Code.