AT OUR PLACE, IT’S AT YOUR PLACE

AT OUR PLACE, IT’S AT YOUR PLACE

If you desire to acquire a property on which a servitude grants a right of access to another owner or the lot is sold with a right of access connecting it to the public road or a lake, conflicts between neighbors may arise depending on the time or the way the deed was drafted.

A servitude is a broad legal concept often found in the form of a right of way. For the purposes of this article, we will not discuss business or public service easements.

“First, we must determine whether we are dealing with a servitude or a personal privilege clause,” says Olivier Martineau of La Boîte Juridique. “Unlike a servitude, a personal privilege is granted to an individual and their guests but does not extend to future owners. For example, if a property owner grants a neighbor a right of access to their private beach, this right may not necessarily be transferred if the property is sold, even if the use of the beach by the new owners is tolerated for several years. That’s why it’s important to understand what characterizes servitudes.”

Where, when, how?

A servitude is a set of obligations and rights attached to a property. The dominant land is the lot in favor of which the servitude is granted, while the servient land is the property that serves for the passage by others. The servitude can also extend over a series of properties, such as when only one of these contiguous lands has access to the public road. In this case, the non-accessible lands are called landlocked, and a servitude may grant a right of way to each of these properties through the most natural route, which may extend over several lands.

By definition, the owner of the servient land accepts a certain loss of enjoyment of their property. “Indeed, they must grant and tolerate the use of a portion of their land by others, including for circulation or to make improvements to make the access drivable,” says Mr. Martineau.

Responsibility

However, it is the owners of the dominant land who must ensure at their expense the maintenance and conservation of the plot of land on which the servitude is located. Moreover, if its use causes damage to the servient land, they must bear the costs related to repairs.

A servitude must confer a real advantage on the dominant land, not just its owner, and is therefore, by nature, perpetual upon the sale of the property. “If you want to limit its scope, it must be provided for in the drafting of its constitutive act,” says the legal expert.

Accurate description?

The constitutive act of the servitude, which must be registered in the land registry, describes the extent of the rights granted by it and the exact location where it is located on the servient land. However, one must be cautious because several servitudes date back a long time and are described in terms that lack precision, potentially leading to litigious situations. This is especially true since sometimes what is indicated in the deed of sale of the properties concerned is mutually contradictory or does not correspond to what is indicated in the constitutive act of the servitude. It is still possible to amend the servitude by mutual agreement between the owners by publishing a rectifying act.

Eternal servitude?

Servitudes are not necessarily eternal and can be extinguished in a few cases provided for by law. “Thus, when one becomes the owner of both the dominant and servient land, the servitude does not survive and will no longer exist for future owners. There may also be an express waiver by the owner of the dominant land, for example, if they no longer need it. It also comes to an end through non-use for a period of 10 consecutive years,” he says.

It is sometimes mistakenly believed that a servitude automatically ceases to exist when it loses its usefulness. However, case law is clear that this is not a cause of extinction. It is possible, however, that a specific clause stipulating this be included in the constitutive or rectifying act of the servitude. In this way, a servitude allowing a right of way to a landlocked plot could cease as soon as the plot is no longer landlocked.

However, one must be aware that granting a servitude or losing its benefits can affect the resale value of a property or significantly reduce its use.

WARNING: The information contained in this article, while of a legal nature, does not constitute legal advice. It is recommended to consult with a professional for advice that will address your specific situation.