Servitude, Predial

SERVITUDE, PREDIAL. - I. NOTION. - It is a burden, a limitation resting upon one parcel of land (servient) for the benefit of another parcel (dominant), belonging to a different owner (cf. art. 1027 of the Italian Civil Code).

The denomination has above all a historical value, inasmuch as in the past there was a single category in which all real rights of enjoyment were comprised. Thus a distinction was drawn between personal servitudes (usufruct, use and habitation, also called irregular servitudes, consisting in a service of a thing for the advantage of a person) and praedial servitudes (from praedium).

There are two essential elements of a servitude: the limitation imposed upon a thing owned by another and the utility that one parcel renders to another. Hence praedial servitudes are distinguished from servitudes of public use and from the so-called usi civici (civic uses), where the utility is directed to persons and not to parcels. Therefore, for a servitude to exist, there must be two parcels; but they are not, for that reason, the subjects of the legal relationship. The subjects are always the owners of the parcels, 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 inheres in the parcel and follows it, even if the parcel is alienated and passes into the ownership of others. By parcel is meant as a rule the land and the building, and therefore not movable goods or incorporated immovables (art. 1077), and generally the other real rights over immovables. Res extra commercium cannot be a servient parcel (arts. 822-24, 1045 of the Italian Civil Code); they can, however, be a dominant parcel, as is expressly provided by art. 825. The doubt that arose under the Code of 1865, whether a servitude could be acquired on or in favor of a nullus parcel, no longer has any reason to exist, for the reason that "immovable property which is not in the ownership of anyone belongs to the State" (art. 827). It remains, however, beyond dispute that the servitude persists on or in favor of a parcel that has passed into the patrimony of the State. Provision is also made for a servitude on a future parcel (art. 1029); the relevant agreement of constitution, however, has only obligatory effect, and when the parcel comes into existence or enters the patrimony of the stipulator, the relationship will be transformed from obligatory into real and the servitude will automatically come into existence, without the manifestation of a new consent.

The servitude, while on the passive side it is a burden, on the active side represents a utility. By utility is not meant solely the need of the parcel in the strict sense (arts. 1051-52), but also the greater convenience or comfort or amenity that a parcel may derive from the imposition of the servitude upon another parcel (art. 1028). Besides being present, the utility may also be future, whether certain or uncertain or contingent (art. 1029).

It has been said that the servient parcel and the dominant parcel must belong to different owners (art. 1027), according to the Roman principle: nemini res sua servit. And this because the economic content of the right of servitude is already implicit in the broader real right, such as that of ownership, belonging to the same subject; and it cannot form the object of a separate right without this coming to belong to a different subject. However, where a person is a co-owner of one parcel and the exclusive owner of another parcel, he may have an interest in there being a servitude on the parcel held in co-ownership.

The Romans required for the validity of a servitude the vicinitas praedium and the causa perpetua servitutis. In Italian law vicinitas is not required as a requisite of the praedial servitude, but is only an indication of the utility of the servitude (arts. 1033, 1056, 1057). As regards the causa perpetua servitutis, it is to be observed that the Romans meant to refer to the source of the utility, which must be derived from the servient parcel, and they did not require that the servitude should be perpetual. In Italian law it is agreed that, where the industry is incorporated on the parcel from which a given utility is to be derived, this suffices for the praedial servitude to come into existence, even if for the working of the servient parcel the act and intervention of its owner are required (arts. 1047 and 1096). One must not, however, confuse the perpetua causa servitutis with the servitude for a fixed term, which is always possible (arts. 1033 and 1044).

II. PROPER PRINCIPLES OF PREDIAL SERVITUDE

Besides the rule nemini res sua servit, of which mention has already been made, p. easements are governed by three other fundamental principles.

1. They, unlike obligations, do not consist, for the owner of the servient tenement, in a facere, but in a pati (servitus in faciendo consistere nequit). For Article 1030 says: "the owner of the servient tenement is not bound to perform any act to make possible the exercise of the easement by the holder, unless the law or the title provides otherwise." Deviations from the aforesaid principle concern obligations propter rem and real charges (Article 967), the easement oneris ferendi (Articles 1069-70) and the water easement (Article 1091).

2. Again on the basis of the principle of the inherence of the easement in the tenement, p. easements are inalienable, and therefore servitus servitutis esse non potest. Consequently, one cannot alienate the tenement while retaining the easement, nor alienate the easement while retaining the tenement; just as it is not possible to create a mortgage over the easement without also mortgaging the tenement; nor is it possible to create an easement over an easement, because the latter can burden only a tenement and not a real right, even if immovable. It does not follow, however, that the easement cannot be transferred, whether from the point of view of the servient tenement or of the dominant tenement, in accordance with and under the conditions laid down in Article 1086.

3. P. easements are indivisible: servitutes dividi non possunt, in the sense that, as Article 2809 expresses it in the matter of mortgage, "it subsists in its entirety over the encumbered property, over each of them and over every part thereof." Among the Romans this principle displayed all the characteristics of absoluteness. Under the present Italian Code, the principle of indivisibility, although prevailing (Articles 1073, 1075), is not, however, absolute (cf. Article 1071).

III. CLASSIFICATION OF PREDIAL SERVITUDE

Predial servitudes are distinguished into:

1. Continuous and discontinuous servitudes: continuous are those that do not require the holder to intervene continuously in order to exercise them (for example, the servitude of not building); discontinuous are those that require a present act of man (for example, a right of way). This distinction emerges, in the current Code, in art. 1073, on the subject of extinction of the servitude through non-use.

2. Apparent and non-apparent servitudes: apparent are those servitudes that result from visible and permanent works (for example, a window), destined for their service (art. 1061); non-apparent, those that do not result from such works. This distinction, which does not coincide with the preceding one, is important both for acquisition by usucapion and by destination of the head of the family (art. 1061), and for the action available to the buyer against the seller, when the property was encumbered by servitudes and the price does not appear declared in the contract (arts. 1489, 1840, 1844, 1937).

3. Positive and negative servitudes: positive, if it entails on the part of the owner of the dominant tenement a use of the servient tenement (for example, a right of way); negative, if it entails no such use and is limited to preventing the owner of the servient tenement from performing acts that would fall within the faculties of his right (for example, a servitude of not raising [the height of a building]). This distinction, which does not necessarily coincide with the preceding ones, serves to determine the dies a quo on which the non-use begins that leads to extinction of the servitude by prescription (art. 1068).

4. Compulsory and voluntary servitudes: a compulsory servitude (improperly called legal) is one that is owed by law; a voluntary one is that which derives from the free will of the individual (cf. art. 1031).

It is useful, therefore, to bear in mind that servitudes of the first kind (compulsory aqueduct: arts. 1033, 1041; compulsory discharge: arts. 1043-44; support of a weir: art. 1047; compulsory supply of water: arts. 1049-1050; compulsory right of way: arts. 1051-54; compulsory electric line: art. 1056; passage of funicular railways: art. 1057) differ from the legal limitations (distances in constructions, art. 873 ff.) of the right of ownership, in that the former entail a restriction of the enjoyment of the servient tenement and an enlargement of the enjoyment of the dominant tenement; the latter, on the other hand, indicate only a determination of the normal content of the right of ownership. Moreover, legal servitudes, unlike legal limitations, entail a consideration, that is, an indemnity (cf. art. 1032). Finally, legal limitations arise automatically and coexist with the right of ownership over the property; servitudes, even compulsory ones, are added to the right of ownership, arise at a later moment and have their own source and their own protection.

IV. MODES OF CONSTITUTION AND ACQUISITION OF PREDIAL SERVITUDE

Predial servitudes may be constituted by contract or by will; apparent servitudes may be acquired by usucapion and by destination of the head of the family (arts. 1058, 1061).

1) For constitution by contract, a written instrument is required, on pain of nullity (arts. 1350, 4; 2739, 2725, 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 emphyteuta may give consent to the constitution of the servitude, in favor of or charged upon the emphyteutic tenement, or, in favor only of the tenement held in usufruct, the usufructuary may do so (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 effect. 3) In acquisition by usucapion, the discipline of the Code of 1865 (art. 618) is superseded by the Italian Civil Code in force (art. 1061), it being affirmed that all servitudes, continuous or discontinuous, may be acquired by usucapion, provided they are apparent. Ordinary usucapion, that is, of twenty years (art. 1158), applies to any possessor. Possession must not have been acquired by violence or clandestinely (art. 1163) and must have continued without interruption for a period of twenty years (art. 1167). For ten-year possession, good faith and a title abstractly suitable and duly registered are further required (art. 1159). 4) Acquisition by destination of the head of the family applies both to continuous and to discontinuous servitudes, provided they are apparent (arts. 1061, 1062).

V. EXERCISE OF PREDIAL SERVITUDES (arts. 1063-71)

A servitude must be exercised: 1) in the manner established by the title (arts. 1063, 1362, 1366), that is, by the contract or the 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 servitudes are 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 are not sufficient to eliminate all doubt, the criterion of « satisfying the need of the dominant tenement with the least burden on the servient tenement » must be observed (art. 1065; cf. arts. 1064, 1067, 1069, 1070, etc.). For the transfer of the servitude to a different place and for the reduction thereof, arts. 1068 and 1093 respectively apply.

VI. PROTECTION AND MEANS OF DEFENSE OF PREDIAL SERVITUDE

Article 1079 provides: "the holder of the servitude may have its existence recognized in court against anyone who contests its exercise and may cause any impediments and disturbances to cease. He may also request the restoration of things to their former state, in addition to compensation for damages." This article embraces not only the action for declaration, such as the actio confessoria, concerning the right of servitude, but also the possessory actions of reinstatement (art. 1168) and of maintenance (art. 1170). The action is granted to the owner of the dominant tenement; to all the co-owners together (art. 1073, last paragraph); to the usufructuary (art. 1012); to the emphyteuta; to the husband for dotal property (art. 184) or property that he otherwise administers (art. 173); to the owner's creditor (arts. 2900, 2813); and it is exercised against the owner of the servient tenement, against all the co-owners (art. 1309) and the successors in title of the defendant.

The plaintiff must prove his own right of servitude, and the contestation or act of disturbance on the part of the defendant. The judgment will be one of mere declaration, if it is limited to the recognition of the right; it will be one of condemnation, if it entails restoration to the former state or compensation for damages.

For the protection of property, the actio negatoria is granted, directed at establishing the non-existence of the servitude claimed by the owner of the servient tenement.

VII. EXTINCTION OF PREDIAL SERVITUDE

A servitude is extinguished: 1) on expiry of the term (cf. arts. 1033 and 1044) or on dissolution of the constitutive title, which may follow either from a judicial pronouncement on account of breaches of the bilateral contract (art. 1458), or from the occurrence of a resolutory condition inherent in the title itself (art. 1360); or by mutual agreement or by a written act of renunciation (art. 1350, no. 5) and transcribed (art. 2544); or by expropriation for public utility (art. 823); 2) by abandonment of the servient tenement in favour of the owner of the dominant tenement (art. 1070) or by a judgment declaring that the conditions of a compulsory servitude have ceased (arts. 1049, 1055); 3) by confusion, which occurs when the owner of the servient tenement also becomes owner of the dominant tenement or vice versa (art. 1072); 4) by extinctive prescription, when the owner of the dominant tenement does not "make use of the servitude" for twenty years. The term runs from the day on which its exercise ceased; but in the case of a negative servitude or of a servitude for whose exercise the act of man is not necessary, the term runs from the day on which an act occurred that prevented its exercise. In servitudes exercised at intervals, the term runs from the day on which the servitude could have been exercised and its exercise was not resumed. For the purposes of extinction, account is also taken of the time during which the servitude was not exercised by previous holders. If the dominant tenement belongs to several persons in common, the use of the servitude made by one of them prevents extinction with regard to all. The suspension or interruption of prescription in favour of one of the co-owners benefits the others as well" (art. 1073); 5) by destruction of the servient tenement or of the dominant tenement; 6) "Servitudes constituted by the emphyteuta over the emphyteutic tenement cease when the emphyteusis is extinguished by expiry of the term, by prescription or by devolution" (art. 1077).

In patrimonial matters, the Church has canonized territorial civil laws, provided they are not contrary to divine law or to other provisions of canon law (can. 1529). It is necessary, therefore, to safeguard ethical and canonical requirements, as, for example, in the matter of good faith in this field (can. 1512, 1058 ff.; 1495, 1497, 1533); but, these reservations made, for the rest the civil laws have value in conscience.

Angelo Criscito