PREDIAL SERVITUDE. - I. CONCEPT
It is a burden, a limitation imposed upon a property (servient) for the benefit of another property (dominant), belonging to a different owner (cf. art. 1027, Italian Civil Code).
The designation has above all a historical value, since in the past there was a single category comprising all rights in rem of enjoyment. Thus, personal servitudes were distinguished (usufruct, use, and habitation, also called irregular servitudes, consisting in a service rendered by a thing for the benefit of a person) from p. s. (from praedium).
There are two essential elements of a servitude: the limitation imposed upon a thing belonging to another and the utility that one property provides to another. Hence predial servitudes are distinguished from servitudes in the public interest and from the so-called usi civici, in which the benefit is directed toward persons and not toward properties. Accordingly, for a servitude to exist, two properties are required; but they are not, for that reason, the subjects of the legal relationship. The subjects are always the owners of the properties, and if they are not directly mentioned in the definition, this is because a servitude is a right in rem and as such may be asserted erga omnes. The servitude inheres in the property and follows it, even if it is alienated and passes into the ownership of others. Property ordinarily means land and a building, but not movable property or immovables incorporated into it (art. 1077), nor, in general, other rights in rem in immovables. Res extra commercium cannot be servient properties (arts. 822–24, 1045, Italian Civil Code); they may, however, be dominant properties, as is expressly provided by art. 825. The doubt that arose under the Empire of the 1865 Code as to whether a servitude could be acquired or exist upon or in favor of a nullus property no longer has any basis, because “immovable property that is not owned by anyone belongs to the State” (art. 827). It remains beyond dispute, however, that the servitude continues upon or in favor of the property that has passed into the State’s patrimony. A servitude over a future property is also provided for (art. 1029); the agreement establishing it, however, has only obligatory effect, and when the property comes into existence or enters the patrimony of the contracting party, the relationship will change from obligatory to real and the servitude will automatically come into existence, without the expression of a new consent.
A servitude, while on its passive side it is a burden, on its active side represents a benefit. Benefit does not mean solely the need of the property in the strict sense (arts. 1051–52), but also the greater advantage, convenience, or amenity that may accrue to one property from the imposition of the servitude upon another property (art. 1028). In addition to being present, the benefit may also be future, whether certain, uncertain, or merely eventual (art. 1029).
It has been said that the servient and dominant properties 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 broader right in rem of ownership, belonging to the same person; and it cannot constitute the object of a separate right without that right belonging to a different person. Nevertheless, where a person is a co-owner of one property and the exclusive owner of another, that person may have an interest in having a servitude imposed upon the jointly owned property.
The Romans required vicinitas praedium and the causa perpetua servitutis for the validity of a servitude. In Italian law, vicinitas is not required as a condition of a p. s., but is merely an indication of the benefit of the servitude (arts. 1033, 1056, 1057). As regards the causa perpetua servitutis, it should be observed that the Romans intended to refer to the source of the benefit, which must be derived from the servient property, and did not require the servitude itself to be perpetual. In Italian law it is generally agreed that, where an installation or productive activity is incorporated into the property from which a given benefit is to be derived, this suffices for the p. s. to come into existence, even if putting the servient property into operation requires the action and intervention of its owner (arts. 1047 and 1096). The perpetua causa servitutis must not, however, be confused with a servitude established for a definite period, which is always possible (arts. 1033 and 1044).
II. PRINCIPLES PROPER TO 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 land, in a facere, but in a pati (servitus in faciendo consistere nequit). Article 1030 in fact provides: “the owner of the servient land is not obliged to perform any act to make it possible for the holder to exercise the servitude, unless the law or the title provides otherwise.” Exceptions to the foregoing principle concern obligations propter rem and real charges (art. 967), the servitus oneris ferendi (arts. 1069–70), and the water servitude (art. 1091).
2. Again on the basis of the principle that the servitude inheres in the land, predial servitudes are inalienable, and therefore servitus servitutis esse non potest. Consequently, one cannot alienate the land while retaining the servitude, nor alienate the servitude while retaining the land; likewise, it is not possible to create a mortgage on the servitude without also mortgaging the land, nor is it possible to create a servitude over a servitude, since a servitude can encumber only land and not a real right, even if immovable. This does not mean, however, that the servitude cannot be transferred, whether from the standpoint of the servient land or of the dominant land, in accordance with and under the conditions laid down by art. 1086.
3. Predial servitudes are indivisible: servitutes dividi non possunt, in the sense that, as art. 2809 states with regard to mortgages, “it subsists in its entirety over the encumbered property, over each of them, and over every part thereof.” Among the Romans, this principle displays all the characteristics of absoluteness. Under the current Italian Code, the principle of indivisibility, although predominant (arts. 1073, 1075), is nevertheless not absolute (cf. art. 1071).
III. CLASSIFICATION OF PREDIAL SERVITUDES
Predial servitudes are distinguished as follows:1. Continuous and discontinuous servitudes: continuous servitudes are those which do not require their holder to intervene continually in order to exercise them (e.g., the servitude of not building); discontinuous servitudes are those which require an actual act by a person (e.g., a right of way). This distinction emerges in the current Code in art. 1073, concerning extinction of the servitude through non-use.
2. Apparent and non-apparent servitudes: servitudes are called apparent when they are evidenced by visible and permanent works (e.g., a window) intended for their use (art. 1061); non-apparent servitudes are those not evidenced by such works. This distinction, which does not coincide with the preceding one, is important both for acquisition by usucapion and by the designation of the father of the family (art. 1061), and for the action available to the buyer against the seller when the property was encumbered by a servitude and the price is not shown in the contract (arts. 1489, 1840, 1844, 1937).
3. Positive and negative servitudes: a servitude is positive when it entails, on the part of the owner of the dominant estate, a use of the servient estate (e.g., a right of way); negative when it entails no such use and is limited to preventing the owner of the servient estate from performing acts that would fall within the powers conferred by his right (e.g., the servitude of not raising a structure). This distinction, which does not necessarily coincide with the preceding ones, serves to determine the dies a quo from which non-use begins, leading to extinction of the servitude by prescription (art. 1068).
4. Compulsory and voluntary servitudes: a compulsory servitude (improperly called a legal servitude) is one required by law; a voluntary servitude is one deriving from the free will of a private person (cf. art. 1031).
It is therefore useful to bear in mind that servitudes of the first kind (compulsory aqueduct: arts. 1033, 1041; compulsory drainage: arts. 1043–44; support for a dam: art. 1047; compulsory supply of water: arts. 1049–1050; compulsory right of way: arts. 1051–54; compulsory electric-line easement: art. 1056; passage for funicular railways: art. 1057) differ from the legal limitations (distances in construction, art. 873 ff.) on the right of ownership, in that the former entail a restriction of the use of the servient estate and an enlargement of the use of the dominant estate; the latter, on the other hand, merely establish the normal content of the right of ownership. Moreover, legal servitudes, unlike legal limitations, entail compensation, that is, an indemnity (cf. art. 1032). Finally, legal limitations arise automatically and coexist with the right of ownership over the estate; servitudes, including compulsory ones, are added to the right of ownership, arise at a later time, and have their own source and their own legal protection.
IV. METHODS OF CREATION AND ACQUISITION OF REAL SERVITUDES
Real servitudes may be created by contract or by testament; apparent servitudes may be acquired by usucaption and by destination of the owner (arts. 1058, 1061).1) For creation by contract, a written instrument is required, under pain of nullity (arts. 1350, 4; 2739, 2725, 2724). Registration is also necessary (art. 2643, 4), so that the servitude may be asserted against third parties. In place of the owner, consent to the creation of the servitude, in favor of or burdening an emphyteutic estate, may be given by the emphyteuta; or, solely in favor of property subject to usufruct, by the usufructuary (arts. 1077-78). 2) Creation by testament can take place only by way of legacy (art. 1058). If 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 usucaption, the Italian Civil Code now in force (art. 1061) supersedes the rules of the Code of 1865 (art. 618), providing that all servitudes, whether continuous or discontinuous, may be acquired by usucaption, provided that they are apparent. Ordinary usucaption, that is, acquisition after twenty years (art. 1158), applies to any possessor. Possession must not have been acquired violently or clandestinely (art. 1163), and must have continued without interruption for a period of twenty years (art. 1167). For possession lasting ten years, good faith and a title abstractly capable of producing the relevant effect and duly registered are additionally required (art. 1159). 4) Acquisition by destination of the owner applies both to continuous and to discontinuous servitudes, provided that they are apparent (arts. 1061, 1062).
V. EXERCISE OF REAL SERVITUDES (arts. 1063-71). — The servitude must be exercised: 1) in the manner established by the title (arts. 1063, 1362, 1366), that is, by the contract or testament, or, in the case of compulsory servitudes, by the judgment creating the servitude itself. 2) In the absence of a title, the servitude must be exercised in accordance with possession, that is, « regard is had to the practice of the preceding year and, where servitudes are exercised at intervals longer than one 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 possession do not suffice to eliminate every doubt, the criterion « of satisfying the needs of the dominant estate with the least burden on the servient estate » must be observed (art. 1065; cf. arts. 1064, 1067, 1069, 1070, etc.). The transfer of the servitude to a different location and its reduction are governed, respectively, by arts. 1068 and 1093.
VI. PROTECTION AND MEANS OF DEFENCE OF PREDIAL SERVITUDES
Article 1079 provides: “the holder of the servitude may have its existence judicially recognized against anyone who disputes its exercise and may cause any impediments and disturbances to cease. He may also request restoration of the property to its original condition, in addition to compensation for damages.” This article encompasses not only the action for a declaration, such as the confessory action, concerning the right of servitude, but also the possessory actions for reinstatement (art. 1168) and maintenance (art. 1170). The action is granted to the owner of the dominant estate; to all the co-owners jointly (art. 1073, final paragraph); to the usufructuary (art. 1012); to the emphyteuta; to the husband in respect of dowry property (art. 184) or property that he otherwise administers (art. 173); to the owner’s creditor (arts. 2900, 2813); and it is brought against the owner of the servient estate, against all the co-owners (art. 1309), and against the successors in title of the defendant.The plaintiff must prove his right of servitude and the contestation or act of disturbance by the defendant. The judgment will be merely declaratory if it is limited to recognition of the right; it will be condemnatory if it entails restoration of the property to its original condition or compensation for damages.
For the protection of ownership, the negatory action is available, directed toward establishing the non-existence of the servitude claimed against the owner of the servient estate.
VII. EXTINCTION OF PREDIAL SERVITUDES
A servitude is extinguished: 1) upon expiry of the term (cf. arts. 1033 and 1044), or upon rescission of the constitutive title, which may occur either through a judicial ruling on account of non-performance of the bilateral contract (art. 1458), or through the occurrence of the resolutory condition inherent in the title itself (art. 1360); or by mutual agreement or by a written instrument of waiver (art. 1350, no. 5) that has been transcribed (art. 2544); or by expropriation for public utility (art. 823); 2) through abandonment of the servient estate in favour of the owner of the dominant estate (art. 1070), or by a judgment declaring that the conditions of a compulsory servitude have ceased (arts. 1049, 1055); 3) through confusion, which occurs when the owner of the servient estate also becomes the owner of the dominant estate, or vice versa (art. 1072); 4) through extinctive prescription, when the owner of the dominant estate does not « use the servitude » for twenty years. The period runs from the day on which its exercise ceased; but if it concerns a negative servitude or a servitude whose exercise does not require the act of a person, the period runs from the day on which an event occurred that prevented its exercise. In servitudes exercised at intervals, the period runs from the day on which the servitude could have been exercised and its exercise was not resumed. For the purposes of extinction, the period during which the servitude was not exercised by previous holders is also counted. If the dominant estate belongs jointly to several persons, use of the servitude by one of them prevents extinction with regard to all of them. Suspension or interruption of prescription for the benefit of one of the co-owners also benefits the others » (art. 1073); 5) through the destruction of the servient estate or of the dominant estate; 6) « Servitudes established by the emphyteuta over the emphyteutic estate cease when the emphyteusis is extinguished by expiry of the term, by prescription, or by reversion » (art. 1077).In patrimonial matters, the Church has canonized the territorial civil laws, provided that they are not contrary to divine law or to other provisions of canon law (can. 1529). It is therefore necessary to safeguard ethical and canonical requirements, as, for example, with regard to good faith in this matter (can. 1512, 1058 ff.; 1495, 1497, 1533); but, subject to these reservations, civil laws otherwise have force in conscience.