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SERVITUDES ((Itself is an immeuble (IMM), A right attaching to 1 IMM …
SERVITUDES
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A right attaching to 1 IMM (DOMINANT TENEMENT - benefiting land) imposing a burden upon another IMM (SERVIENT TENEMENT)
May be realty ( to X and his heirs and successors) or personalty (to a specified individual). Servitudes personelle are Droits d'usufruit and D'habitation
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Main diff btw S and negative covenant in favour of another is the remedy BoCov damages, but S injunction
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ACQUISITION
Nul servitude sans titre
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Even if have oral consent from neighbour to cut across land and used for x years, never acquire legal right unless granted by deed
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SERVITUDE REELLES TYPES
Est. by law
party walls, destination du pere de famille, land enclave
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Human action
usually by formal action, e.g tour d'echelle (right to place ladder on neighbours land for repairs), charged covenants
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LIMITS
GENERAL
If time/place/manner not stipulated Basnage states right only exercised at convenient times/place/reasonable manner
E.g right not ltd to specific path, in theory use any part of ST, but this an abuse - owner of ST may indicated a path, even though might not be most convenient for user (as construed in favour of ST)
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If width of path not specified, Jurats will decide looking at intentions, if still not enough info to decide then any ambiguity in favour of ST
Ancillary rights: implied to enter on others land to do works necessary to use and preserve the servitude BUT only to extent works necessary rather than simply convenient
Poulding v Elliot (ramp case) Personal preference did not equate to necessity. Plts (as DT) were not exercising servitude in way which minimises inconvience to Defs (ST)
AGGRAVATION
where a right was granted for a certain purpose which the owner of the DT extends or departs from for a different purpose (e.g where a DT has been divided into 2 with a consequent and unacceptable > in its use)
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Remedies: Injunction, damages & extinction of the offending servitude
For DT seeking to extend right could:- negotiate with ST so covers the aggravation or apply under 1987 Law to vary BUT s22 states cannot increase burden of compliance unless covenant is for mutual sums of money, which have now become inadequate.
LOSS
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Duquemin v Dunstan: Servitude such as right to view might not be lost by prescription, whereas something requiring positive act on the DT (i.e. right of way) could be
Duquemin v Dustan: ST must show prima facie non-use, the burden shifts to DT to show right of way exercised
Arguable A8/P1 peaceful enjoyment of pty/possessions applies to servitudes and can be used in offence or defence of them
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DRAFTING
(1) P must get enforceable rights: Clearly state over what part of servient land rights to be exercised
(2) V may reserve some rights: where only sells part likely series of rights/servitudes need to be created btw the 2 parts
If acting for P & note servitude missing from last convey. not mean its lost - ok provided servitude in original doc. granting it & burdening agst. ST. Add it to next convey.
(3) Ensure dominant land will upkeep: check for enforceable rights to keep, use or maintain access
Check all rights/servitudes in title deeds: Cant rely on title deed of last convey. stating RoW - must check deed in which right granted/reserved.
(4) No change of the servitude if land changes: For the DT imp to provide all rights unaffected by any subsequent increase, change in use or sub-div of land benefitting from the right (e.g. converted into flats) to avoid future complaints of aggravation
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