SERVI TÙ PREDIALE
### I. Concept
It is a burden, a limitation encumbering one estate (servient) for the benefit of another estate (dominant), belonging to a different owner (cf. art. 1027, Cod. civ. it.).
The term has primarily historical significance, inasmuch as in the past there existed a unitary category under which all real rights of enjoyment were comprehended. Thus, personal servitudes (usufruct, use and habitation, also called irregular servitudes, consisting in a service of a thing for the advantage of a person) and predial servitudes (from *praedium*) were distinguished.
There are two essential elements of a servitude: the limitation imposed upon the property of another and the utility that one estate provides to another. Hence, predial servitudes are distinguished from servitudes of public use and the so-called civic uses, where the utility is directed to persons and not to estates. Therefore, for different servitudes, the existence of two estates is required; but they are not, for this reason, the subjects of the legal relationship. The subjects are always the owners of the estates, and if they are not directly mentioned in the definition, it is because the servitude is a real right and as such enforceable *erga omnes*. The servitude adheres to the estate and follows it, even if it is alienated and passes into the ownership of another. By "estate" is generally understood land and buildings, not therefore movable goods or immovable property incorporated therein (art. 1077), and in general other real rights in immovable property. The servient estate cannot be *res extra commercium* (arts. 822–24, 1045 Cod. civ. it.); dominant estates, however, can be, as expressly provided by art. 825. The doubt that existed under the Civil Code of 1865, whether a servitude could be acquired or subsist over and in favor of a *fundus nullius*, no longer has any basis, for the reason that “immovable goods that are not in the ownership of anyone belong to the State” (art. 827). It remains beyond dispute, however, that the servitude persists over or in favor of the estate that has passed into the patrimony of the State. Servitudes over a future estate are also provided for (art. 1029); the relevant agreement for their constitution has, however, only obligatory efficacy, and when the estate comes into existence or enters the patrimony of the stipulator, the relationship will change from obligatory to real and the servitude will come into existence automatically, without the need for new consent.
The servitude, while from the passive side is a burden, from the active side represents a utility. By "utility" is not meant solely the need of the estate in the strict sense (arts. 1051–52), but also the greater convenience, comfort, or amenity that may accrue to an estate from the imposition of a servitude upon another estate (art. 1028). Besides being current, the utility may also be future, whether certain or uncertain or contingent (art. 1029).
It has been said that the servient estate and the dominant estate must belong to different owners (art. 1027), according to the Roman principle: *nemini res sua servit*. This is because the economic content of the right of servitude is already implicit in the more extensive real right, such as that of ownership, belonging to the same subject; and it cannot form the object of a separate right unless that right belongs to a different subject. However, if a person is co-owner of one estate and sole owner of another, they may have an interest in having a servitude over the estate held in co-ownership.
The Romans required for the validity of a servitude *vicinitas praediorum* and *causa perpetua servitutis*. In Italian law, *vicinitas* is not required as a requisite of a predial servitude, but is only an indication of the utility of the servitude (arts. 1033, 1056, 1057). With regard to *causa perpetua servitutis*, it should be noted that the Romans intended to refer to the source of the utility, which must derive from the servient estate, and did not require that the servitude itself be perpetual. In Italian law, it is agreed that, where an industry is incorporated into the estate from which a given utility is to be derived, this suffices for the predial servitude to come into existence, even if the operation of the servient estate requires the act and intervention of its owner (arts. 1047 and 1066). It must not, however, be confused with the perpetual cause of the servitude with a servitude for a fixed term, which is always possible (arts. 1033 and 1044).
### II. Fundamental Principles of Predial Servitudes
In addition to the rule *nemini res sua servit*, already discussed, predial servitudes are governed by three other fundamental principles.
1. Unlike obligations, they do not consist, for the owner of the servient estate, in an act of doing (*facere*), but in an act of suffering (*pati*) (*servitus in faciendo consistere nequit*). Article 1030 states: “the owner of the servient estate is not bound to perform any act to enable the exercise of the servitude by the holder, unless the law or the title provides otherwise.” Exceptions to the above principle concern obligations *propter rem* and real burdens (art. 967), the servitude of supporting a burden (*servitus oneris ferendi*) (arts. 1069–70), and the servitude of water (art. 1091).
2. Always based on the principle of the inherence of the servitude to the estate, predial servitudes are inalienable, and hence *servitus servitutis esse non potest*. Consequently, the estate cannot be alienated while retaining the servitude, nor can the servitude be alienated while retaining the estate; nor is it possible to constitute a mortgage over the servitude without also mortgaging the estate; nor is it possible to constitute a servitude over a servitude, because the latter can only encumber an estate and not a real right, even if immovable. It is not to say, however, that the servitude cannot be transferred, both from the point of view of the servient estate and of the dominant estate, in accordance with and subject to the conditions laid down in art. 1086.
3. Predial servitudes are indivisible: *servitutes dividi non possunt*, in the sense that, as art. 2809 states in the context of a mortgage, “it subsists in its entirety over the encumbered property, over each part of it, and over every portion thereof.” This principle, in Roman law, had all the characteristics of absoluteness. Under the current Italian Civil Code, although the principle of indivisibility is prevalent (arts. 1073, 1075), it is not, however, absolute (cf. art. 1071).
### III. Classification of Predial Servitudes
Predial servitudes are distinguished into:
1. Continuous and discontinuous servitudes: continuous are those that do not require the holder to intervene continuously to exercise them (e.g., a servitude not to build); discontinuous are those that require the actual act of a person (e.g., a servitude of passage). This distinction appears in the current Civil Code at art. 1073, in the context of extinction by non-use of the servitude.
2. Apparent and non-apparent servitudes: apparent servitudes are those that result from visible and permanent works (e.g., a window), intended for their service (art. 1061); non-apparent are those that do not result from such works. This distinction, which does not coincide with the previous one, is important both for acquisition by usucapion and by destination of the father of the family (art. 1061), and for the action available to the buyer against the seller when the estate is encumbered by a servitude and the price is not declared in the contract (arts. 1489, 1840, 1844, 1337).
3. Positive and negative servitudes: positive if they entail, on the part of the owner of the dominant estate, the use of the servient estate (e.g., a servitude of passage); negative if they do not entail such use and merely prevent the owner of the servient estate from performing acts that would otherwise fall within the scope of their right (e.g., a servitude not to build higher). This distinction, which does not necessarily coincide with the previous ones, serves to determine the *dies a quo* from which non-use begins, leading to the extinction of the servitude by prescription (art. 1068).
4. Coactive and voluntary servitudes: a coactive servitude (improperly called legal) is one that is due by law; a voluntary servitude is one that derives from the free will of a private individual (cf. art. 1031).
It is therefore necessary to bear in mind that servitudes of the first kind (compulsory aqueduct: arts. 1033, 1041; compulsory discharge: arts. 1043-44; support of a sluice: art. 1047; compulsory supply of water: arts. 1049-1050; compulsory passage: arts. 1051-54; compulsory power line: art. 1056; passage of funicular ways: art. 1057) differ from the legal limitations (distances in constructions, arts. 873 and 893) on the right of property, in that the former involve a restriction on the enjoyment of the servient tenement and an enlargement of the enjoyment of the dominant tenement; the latter, instead, merely indicate a determination of the normal content of the right of property. Moreover, legal servitudes, unlike legal limitations, involve a consideration, that is, an indemnity (cf. art. 1032). Finally, legal limitations arise automatically and coexist with the right of property in the tenement; servitudes, even compulsory ones, are added to the right of property, arise at a later moment, and have their own source and their own protection.
IV. MODES OF CONSTITUTION AND ACQUISITION OF LEGAL SERVITUDES
Legal servitudes can be constituted by contract, by will; apparent servitudes can be acquired by prescription and by the presumed intention of the owner (arts. 1058, 1061).1) For constitution by contract, a written instrument is required under penalty of nullity (arts. 1350, 4; 2739, 2723, 2724). Registration is also necessary (art. 2643, 4) so that the servitude may be set up against third parties. In place of the owner, the consent to the constitution of the servitude, whether for the benefit or to the burden of the emphyteutic tenement, may be given by the emphyteuta, or, for the benefit only of the tenement in usufruct, by the usufructuary (arts. 1077-78). 2) Constitution by will can take place only by way of legacy (art. 1058). Where a compulsory servitude does not arise by contract, it may arise by judgment, which, therefore, has not merely declaratory but constitutive force. 3) In acquisition by prescription, the discipline of the Civil Code of 1865 (art. 618) is superseded by the present Italian Civil Code (art. 1061), which affirms that all servitudes, continuous or discontinuous, can be acquired by prescription, provided they are apparent. Ordinary prescription, that is, twenty years (art. 1158), applies to any possessor. The possession must not have been acquired by violence or clandestinely (art. 1163) and must be continued without interruption for the period of twenty years (art. 1167). For ten-year prescription, good faith and a title abstractly suitable and duly registered are also required (art. 1159). 4) Acquisition by the presumed intention of the owner applies both to continuous and discontinuous servitudes, provided they are apparent (arts. 1061, 1062).
V. EXERCISE OF LEGAL SERVITUDES (arts. 1063-71). — The servitude must be exercised: 1) in the manner established by the title (art. 1063, 1362, 1366), that is, by contract or by will, or, for compulsory servitudes, by the judgment constituting the servitude itself. 2) In the absence of a title, the servitude must be exercised in conformity with possession, that is, “regard is had to the practice of the preceding year and, if the servitude is exercised at intervals greater than a year, regard is had to the practice of the last enjoyment” (art. 1066), always bearing in mind that *tantum praescriptum quantum possessum*. 3) If the title and the possession do not suffice to remove every doubt, the criterion must be observed “of satisfying the need of the dominant tenement with the least burden on the servient tenement” (art. 1065; cf. arts. 1064, 1067, 1069, 1070, etc.). For the transfer of the servitude to a different place and for its reduction, arts. 1068 and 1093 respectively apply.
VI. PROTECTION AND MEANS OF DEFENCE OF LEGAL SERVITUDES
Art. 1079 provides: “the holder of the servitude may have its existence judicially recognized against whoever contests its exercise and may cause the removal of any impediments or disturbances. He may also seek restoration of the status quo ante, in addition to compensation for damages.” This article embraces not only the action for ascertainment, such as the *actio confessoria*, concerning the right of servitude, but also the possessory actions of reintegration (art. 1168) and of maintenance (art. 1170). The action is granted to the owner of the dominant tenement; to all co-owners together (art. 1073, last paragraph); to the usufructuary (art. 1012); to the emphyteuta; to the husband for dotal property (art. 184) or which, in any case, he administers (art. 173); to the creditor of the owner (arts. 2000, 2813); and is exercised against the owner of the servient tenement, against all co-owners (art. 1309) and the successors in title of the defendant.The plaintiff must prove his right of servitude, the contestation or the act of disturbance by the defendant. The judgment will be merely declaratory if it is limited to the recognition of the right; it will be condemnatory if it involves restoration of the status quo ante or compensation for damages.
For the protection of property, the *actio negatoria* is given, directed to the ascertainment of the non-existence of the servitude, available to the owner of the servient tenement.