SERVITUDES
- It is a right on the property of somebody else. It has been called burdens of ownership or fractions of ownership vested in someone different than the owner.
- The beneficiary in the case of praedial servitudes is called the DOMINANT land. The property that has been burdened with servitude is called the SERVIENT land.
- It is considered res mancipi: due to its nature it requires the expression of the will of the owner of the servient land. In order to give publicity to the burden placed on the land, the transmission of ownership must be done through the ceremony of the Mancipatio.
- There are two kinds of servitudes: Praedial and Personal. They are different in that the praedial servitudes benefit a specific property regardless of who owns it, whereas the personal servitudes benefit a particular person.
Principles of Servitudes
- Iura in re aliena: rights over things of others.
- Nemini res sua servit: nobody can have a servitude on a property of their own
- Servitus in facendo consistere nequit: NO POSITIVE obligation may be imposed on the owner of the servient property. A servitude creates a generic duty of abstention. EXCEPT in the case of servitus oneris ferendi: urban servitude that occurs when an urban structure is supporting another one. The owner of the servient land or structure the wall or supporting structure in good condition
- Quotiens servitus nec hominum nec praediourum interest non valet: Servitudes need to be useful for the dominant land. It must be functionally necessary for the land and not just for the pleasure of the owner.
PRAEDIAL SERVITUDES Also called “real” servitude.
There must be a DOMINANT land, and a SERVIENT land. The DOMINANT land is the beneficiary of the praedial servitude. They can be Urban or Rustic
Rustic Servitudes
- Iter: right to pass through somebody else’s property
- Actus: right to pass with animals and work instruments
- Acquaeductus: right to pass water from one property to another.
- Acquaehustus: right to obtain water from the servient’s boreholes
- Servitus Pasciendi: right to let the cattle roam and feed on the grass of the servient land
- Creta Eximendae: right of extracting clay from the servient property
- Calcis Coquendae: right to extract and cook limestone
- Lapidis Eximendae: right to extract stones
- Harenae Fodiendae: right to extract sand
Urban Servitude
- Oneris Ferendi: the wall or pillar of one house is bound to sustain the weight of the buildings of the neighbour.
Rustic and Urban
- Stillicidiorum: Water Evacuation (rain water)
- Cloacae: for sewage purposes, the property that is located higher can evacuate sewage through the property located lower There were four kinds of personal servitudes
USUFRUCT
USUS
EMPHYTEUSIS
HABITATIO
When there is a personal servitude there is always a servient thing BUT NOT a dominant thing. The personal servitudes vest in a PERSON and the objects of personal servitudes are not restricted to land/ real estate like the praedial servitudes are
There must be a DOMINANT land, and a SERVIENT land. The DOMINANT land is the beneficiary of the praedial servitude. They can be Urban or Rustic
Rustic Servitudes
- Iter: right to pass through somebody else’s property
- Actus: right to pass with animals and work instruments
- Acquaeductus: right to pass water from one property to another.
- Acquaehustus: right to obtain water from the servient’s boreholes
- Servitus Pasciendi: right to let the cattle roam and feed on the grass of the servient land
- Creta Eximendae: right of extracting clay from the servient property
- Calcis Coquendae: right to extract and cook limestone
- Lapidis Eximendae: right to extract stones
- Harenae Fodiendae: right to extract sand
Urban Servitude
- Oneris Ferendi: the wall or pillar of one house is bound to sustain the weight of the buildings of the neighbour.
Rustic and Urban
- Stillicidiorum: Water Evacuation (rain water)
- Cloacae: for sewage purposes, the property that is located higher can evacuate sewage through the property located lower There were four kinds of personal servitudes
PERSONAL SERVITUDES
USUFRUCT
USUS
EMPHYTEUSIS
HABITATIO
When there is a personal servitude there is always a servient thing BUT NOT a dominant thing. The personal servitudes vest in a PERSON and the objects of personal servitudes are not restricted to land/ real estate like the praedial servitudes are
lets say Sextus shoots a deer in the woods and Tiberius finds the deer first before Sextus does.how can Sextus obtain compensation for the deer he shot?
ReplyDeleteSextus can't obtain compensation for the deer he shot.Remember that wild animals can only be considered occupied if PHYSICAL CONTROL over them is secured, the mere wounding of the animal is not sufficient for acquisition. If the animal escapes, or is found by someone else, it does not enter the estate of the first hunter (sextus in this case).
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