Servitude (Roman law)
Roman law on servitudes / From Wikipedia, the free encyclopedia
In Roman law, the praedial servitude or property easement (in Latin: iura praedorium or servitutes praediorum), or simply servitude (servitutes), consists of a real right the owners of neighboring lands can establish voluntarily, in order that a property called servient lends to other called dominant the permanent advantage of a limited use. As use relations, servitudes are fundamentally solidary and indivisible rights, the latter being what causes the servitude to remain intact despite the fact that any property involved may be divided. Furthermore, there is no possibility of acquisition or partial extinction.[1][2]
As a type of concurrence of rights, the servitude produces a limitation of the ownership of the servient estate. It is the property that suffers the encumbrance, but the owner is at no time personally obliged; this is why the servitude cannot consist in a doing, but rather in a limitation. Although on the part of the servient estate the service may involve a tolerance, from the dominant party's point of view it may consist of a lawful interference (immissio) on the servient estate (affirmative servitude), or of a right to prevent (ius prohibendi) certain acts on the servient estate (negative servitude). When the service provided can be recognized by a sign, such as a window or a canal, the easement is called apparent, while in the opposite case, that is, when there is no such sign, the easement is called not apparent.[3]
In principle, intrusions into another's real estate are not legally permitted, so the owner has the possibility to prevent them (ius prohibendi), and in case of persistence, he can resort to interdicta uti possidetis and quod vi aut clam or to the corresponding negatory actions. For his part, the owner may do whatever he sees fit on his property as long as his actions do not entail an interference with the neighboring estate. Only by means of the constitution of an servitude can an intromission be made lawful, or one of the acts of the owner on the property become unlawful.[4]