Servitude and Real Rights

Question 1

what is a Praedial Servitude?

Answer 1

A subordinate real right enabling the owner of one piece of land to do something in separate ownership.

Question 2

what is a very common example of a praedial servitude

Answer 2

the right of access to cross land

Question 3

Suppose Alex owns Farm A and his neighbour, John, owns a farm called Farm B. Alex wants a right to cross Farm B to get to his property of Farm A from a public road. He would have two options. What are they?

Answer 3

1. First, Alex could simply enter into a contract with John, the owner of Farm B, to allow him to do this. But such a contractual right would be simply in personam; it would only be enforceable by Alex against John. So if John then were to sell his lands to Michael, Alex would have to enter into a new contract with Michael to continue to enjoy a right of access. So that would probably not be ideal from Alex’s perspective.
2. Second, Alex could ask John to burden Farm B with a right of access in favour of the owner of Farm A. We would call this right of access a servitude right of access, and a praedial servitude right of access at that. Note that such a right would continue to burden Farm B to the benefit of Farm A regardless of who owned either farm. Thus servitude “run with the land”

Question 4

what is the servitude of iter

Answer 4

a right of pedestrian access (i.e. access on foot)

Question 5

what is the servitude of actus

Answer 5

a right of driving beasts of draught or vehicles

Question 6

what is the servitude right of via

Answer 6

included both rights of iter and actus

Question 7

what is the servitude of aquaductus

Answer 7

the right of leading water through another man’s land

Question 8

what are the four rustic praedial servitudes

Answer 8

iter, actus, via and aquaductus

Question 9

what are urban servitude

Answer 9

servitude’s thought to pertain to buildings. These included servitude rights to run a drain serving through a neighbour’s land

Question 10

what are the 7 fundamental rules governed by the operation of servitude

Answer 10

1. had to be two separate immovable properties in separate ownership for it to be possible for one to burden the other.
2. The owner of the burdened land could not be required to do anything.
3. Servitude can only be used for the benefit of the dominant or benefited land
4. The properties had to be reasonably close to one another
5. the servitude could not become overly burdensome
6. the servitude had to be exercised reasonably
7. Praedial servitude were perpetual and ran with the land

Question 11

how can servitudes be created?

Answer 11

• by formal modes of conveyance
• by will, inheritance
• by a special form of usucapio in late Classical law

Question 12

how can a servitude become extincted?

Answer 12

• By renunciation
• By confusion, where the owner of the benefited property becomes owner of the burdened property
• By non use, period of twenty years known as negative prescription

Question 13

what is a personal servitude

Answer 13

personal servitude burdened land in favour of a benefited person

Question 14

what is usufruct

Answer 14

the right to be entitled to that of the use of fruits of a thing also known as proper life rent

Question 15

how can a usufruct be created

Answer 15

by the owner of the land and it was usually created in wills. Could be terminated on the death of the holder or earlier if the servitude term was shorter.

Question 16

what is real security

Answer 16

refers to a security in property rather than in an undertaking of a surety or guarantor. For example, a mortgage

Question 17

A wants to borrow a large sum of money from B. B is concerned about A’s ability to repay. Can B ask A for security in law that he will make repayment?

Answer 17

1. First, B could ask A to get A’s friend, C, to guarantee that if A were to be unable to repay the loan, C would repay it for him. C would then be A’s guarantor. We call this sort of security personal security. It has no direct consequences in Property law.
2. Alternatively, B could ask A to deliver to him some valuable item – such as a car – in security for repayment of the loan. The agreement would be that if A failed to repay the loan, B would have a subordinate real right in the car to sell it and recover his losses. The Romans would have called this sort of transaction the pignus, or pledge. We will discuss both this and also the contractual aspects of pledge in more detail next week.