Servitudes

Question 0

What is a personal servitude?

Answer 0

Imposes real obligation on servient estate in favor of a person

Question 1

List two types of servitudes

Answer 1

Predial and Personal

Question 2

What is a predial Servitude?

Answer 2

imposes real obligations on servient estate in favor of a dominant estate (may be affirmative (gives rights/ access) or negative (restricts))

Question 3

True or False: A predial Servitude may never be established on property of the state.

Answer 3

False. Predial Servitudes may be established on public things including property of the state.

Question 4

What is a servitude?

Answer 4

A right in a thing less than full ownership.

Question 5

List examples of Personal Servitude

Answer 5

usufruct, habitation, rights of use

Question 6

What is a negative servitude? Give an example.

Answer 6

A negative servitude restricts the owner of servient estate from doing something on his estate. An example is prohibition of building.

Question 7

Is a right of use terminated when sold to third person?

Answer 7

Look at whether it is the servient or dominant estate. If servient estate, the classification of personal or predial won’t matter. Look to whether it is recorded properly. If so, it is binding on third person. If not properly recorded, then not binding on third person, even if he had actual knowledge.

Question 8

True or False:

A predial servitude may continue in effect even though the dominant and servient estates are owned by same person.

Answer 8

False. Must be two different owners.

Question 9

Can a third party buyer terminate servitude?

Answer 9

This will be determined based on whether it was recorded properly. If so, it is binding on third party buyer. The other option for termination, is prescription for non use or abandonment. Prescription for non use occurs after nonuse for 10 years.

Question 10

May a predial servitude be separated from the dominant estate?

Answer 10

No, it is inseparable from the dominant estate and passes with it. The right of using the servitude cannot be alienated or encumbered separately from the dominant estate. The predial servitude continues as a charge on the servient estate when ownership changes.

Question 11

Acquisitive Prescription Elements (for immovables or servitudes on immovables)

Answer 11

10 year acquisitive prescription: Just title (not good, just purports to transfer ownership); Good Faith; Possession (animus and corpus) Must be adverse and not precarious posessor.

30 year acquisitive prescription: requires Possession element only

Question 12

True or False:
In order to acquire ownership of a movable by prescription, a person must have just title and possess it as owner in good faith for ten years.

Answer 12

False. Acquisitive prescription of a movable requires either three or ten years of possession. Three years requires good faith and juridical act sufficient to transfer ownership. Ten years is possession only.

Question 13

True or False:

A person who possesses a movable for ten years but lacks good faith and just title acquires ownership of the movable.

Answer 13

True

Question 14

What conditions for the owner of servient estate to relocate servitude?

Answer 14

1. Location has become more burdensome
2. In a location that has prevented him from making useful repairs to the servient estate.

If these met, he may relocate and Dominant estate owner must accept.

Question 15

How can a servitude be terminated?

Answer 15

By prescription of non use, or specified term in agreement. Partial use is considered use of the whole.

Question 16

True or False:
If an estate becomes enclosed as a result of a voluntary act or omission of its owner, the neighbors are required under the law to furnish a passage to the owner of the enclosed estate.

Answer 16

False. This is one situation in which an enclosed estate is deprived of the legal servitude of passage.

Question 17

Explain the difference between a natural and legal servitude.

Answer 17

Natural servitudes arise from the natural situation of estates and legal servitudes are imposed by law.

Question 18

What is a reciprocal servitude?

Answer 18

Both estates are simultaneously dominant and servient estates.

Question 19

Can a building restriction arise by operation of law?

Answer 19

No, except that a landowner may not build projections beyond the boundary of his estate. This is a legal servitude.

Question 20

How may owner of estate obtain access to public road?

Answer 20

1. There must be no means of other access
2. neighboring property must be shortest route to nearest public road
3. passage must be located where least injurious to servient estate.
   This is a legal right of passage and is not gratuitous, the owner of the enclosed estate (dominant) must indemnify the owner of the servient estate for the damage he sustains.

Question 21

If legal access to public road is exercised, what exception exists to the requirement to indemnify the servient estate?

Answer 21

WHen the enclavement is created by partition or voluntary alienation of estate. Passage must then be furnished gratuitously by the owner of the land on which the passage was previously exercised.

However, when the owner of the enclosed estate has done it to himself, neither the owner nor his successors have a right to passage.