Normally, individuals who do not own immovable property have no inherent rights over that property. Nevertheless, property owners have the ability to grant certain rights to others concerning their property.
These rights can be formally recorded on the property’s title deed and are known as limited real rights or servitudes. Essentially, a servitude is a right that one person possesses over someone else’s property, which restricts the owner’s freedom to use the property and limits their ownership rights.
A common example is a right of way, where one person has the privilege to pass through another person’s property.
When an immovable property is sold, it is typically sold subject to any registered servitudes unless the holder of the servitude agrees to its cancellation. Consequently, a purchaser is legally obligated to respect and honor the registered servitudes, regardless of whether they were aware of them at the time of purchase.
Therefore, it is crucial for prospective property buyers to ascertain which rights are registered over the property and how these rights may impact its usage.
Servitudes can encompass a variety of rights and can either grant the holder specific privileges concerning the property or restrict the landowner from exercising certain normal ownership rights. For instance, a servitude might entail a right of way that person A has over person B’s property or the authority for person A to prevent person B from constructing beyond a certain height on their property.
The two primary types of servitudes are praedial servitudes and personal servitudes. The key distinction between them is that a praedial servitude benefits a person as the owner of a specific property, whereas a personal servitude benefits a particular individual.
Suppose property owner B grants property owner A a right of way over property 2 in A’s capacity as the owner of property 1. In this case, the right of way is a praedial servitude. If A later sells property 1 to a third party X, X would have the right to exercise the servitude since they are now the owner of property 1.
However, if property owner C grants A the personal right to draw water from a borehole on property 3 in A’s personal capacity, this constitutes a personal servitude because the servitude is granted to A individually, not as the owner of property 1.
Servitudes are commonly registered over farms and smallholdings, while in residential properties, servitudes in favor of adjacent landowners are occasionally found but are not as prevalent. However, residential properties typically have drainage and sewerage servitudes in favor of the local authority.
Additionally, residential properties may be subject to a usufruct, a specific type of personal servitude, registered in favor of another individual. Usufruct is often used in wills, where the property owner bequeaths the property to certain individuals, such as their children, while granting a usufruct to another person, such as their spouse.
Understanding the existence and implications of limited real rights, such as servitudes, is of utmost importance for prospective buyers of immovable property. Being aware of registered rights can prevent surprises and ensure informed decision-making during property transactions.
By knowing the rights associated with a property, individuals can accurately assess its value, potential limitations, and any obligations they may inherit, ultimately safeguarding their interests as property owners.
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