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Trespass & Servitude in Ethiopia (a brief analysis)

Published on: Tue, 2014-01-21 10:25

SERVITUDE

Servitude is a right in rem / real right/ over a definite plot of land, called the servient tenement and annexed to another plot of land, called the dominant tenement. In other words, it is a property right vested in the owner/holder of one plot of land to use a land belonging to another for certain purposes. Servitude is a right that can only exist in relation to two or more plots of land belonging to two or more persons. However, these lands are not required to be adjacent. French and German Laws do require that the servient and dominant tenements be adjacent. See Art 1359(1) (2) of the Civil Code.

Servitude may also be defined as an encumbrance or restriction on the right of ownership of the owner of the servient tenement for the benefit of the owner of dominant tenement.

Furthermore, it is held that the right of servitude may be created only for the benefit of another land. This is intended to prevent creation of servitude for the benefit if of an individual or group, which could consist of an obligation to perform positive acts. Note that an obligation to perform personal services or positive acts cannot be made the subject matter of servitude. See Art 1360 and 1373 of the Civil Code.

As any real right, not only the burden of servitude runs with the servient land its benefit also runs with the dominant land. This is the essence of a real right (servitude) as opposed to personal servitudes, such as the right of usufruct, use and habitation that are also called personal servitude. See Art 1361 of the Civil Code.

Servitude creates an obligation, on the owner of the servient tenement, only to refrain from preventing the owner of the dominant tenement to do certain acts that the latter would not have been able to do otherwise.  In other words, servitude shall not create an obligation to perform positive acts on the owner of the servient tenement. See Art 1359/2/ of the code. One exception to this rule is provided under Art 1360 and 1373 of the Civil Code, which allows the parties to make an agreement in which the owner of the servient tenement undertakes to perform works necessary for the enjoyment and preservation of the right of servitude. Such works may be construction and maintenance of pavements used by the owner of the dominant tenement to exercise his right of way, installation or repair of pipelines to enable the owner of the dominant tenement to have access to water ...etc.

PURPOSE OF SERVITUDE

A person may be unable to make the most advantageous use of his land or building with out some rights over the land belonging to his neighbors. For example;

- My land may not have quarry or water sources while my neighbor’s land has it in plenty. Hence, I cannot construct on my land because of shortage of construction materials such as stones and sand or I may not irrigate my land because my land does not have a water source or is not adjacent to a water source.

- The most convenient access to the high way from one part of my land may lie across the land of my neighbor. Hence, I cannot have a convenient short cut unless I have the right of way on my neighbors land.

- I may wish to be sure that if I build up to the boundary of my land, my neighbor will not subsequently darken my window by building up to the boundary on his side or by planting trees.

I may achieve these goals by concluding a contract to this effect with my neighbor, but this is would create a personal right between the parties to the contract, which do not bind the future owner of such land. Hence, the law provides, under certain circumstances, the owner of one land a real right/ right in rem/ on the land belonging to another. The law also gives a status of a right in rem to servitudes arising from other sources including those arising from contracts.

Therefore, the main purpose of servitude is to enable the owner of the dominant tenement to derive the best possible use and benefit from his land by giving him certain rights on the land belonging to another person, called servient owner. However, unless the servitudes that may be created on a land are restricted in number and extent, it may hamper the profitable use of the servient land and gravely diminish its value, and this will ultimately injure public interest. This is because the owner/holder of such land can not use his land in the manner he desires and other persons will not be interested to acquire such land as their right of ownership is limited or encumbered by the servitude or the right of another person.

Therefore, the law tries to restrict the number and extent of encumbrances or servitudes on the servient tenement in the following ways.

  1. Servitude should be used exclusively for the purpose of using or exploiting the dominant land and it must be used exclusively for that purpose. In other words, the owner of the dominant tenement may not use the servient tenement for the purpose exploiting another land that is not part the dominant tenement. This is because servitude is created on one land for the purpose of using and enjoying another land/ the dominant tenement/, and not for the general benefit of the owner of the dominant tenement. 
  2.  The law also limits the rights of the owner of the dominant tenement to use the servient tenement only to purposes for which the servitude was created at its inception. In other words, it cannot be used for new purposes that may arise after the creation of the servitude. For instance, a servitude of created to cross a land on foot cannot be used to use cars where the owner of the dominant tenement purchases a car, because this increases the burden of the owner of the servient tenement. See Art 1376 of the Civil Code. The law also imposes various obligations on the owner of the dominant tenement with the intention of the preventing him from increasing the burden of the servient tenement. Refer to Arts 1375, 1377, and 1380 of the Civil Code.
  3. The owner of the servient tenement has the right to redeem the servitude where the benefits or advantages it provides to the dominant tenement are lesser than the inconveniences or damages it causes to the servient tenement. See Art 1383.        

4. The owner of the servient tenement cannot be required to do positive acts; he may merely be required to abstain from doing something or to permit the owner of the dominant land to do something on the servient land.

For instance, the owner of the servient tenement may be required;

       - To abstain from building or planting trees so as not to obstruct view from the dominant  land, or

        - To allow the owner of the dominant tenement to walk or drive across his land, or

         - To allow the owner of the dominant tenement to take water or sand or chalk from his land.    

  1. In order to prevent unfair and excessive burden or damages to the servient tenement, the law under Art 1365 of the Civil Code, provides that where it is not clear as to whether the provisions of a contract create a servitude running with the land or a personal obligation on the owner of the land, such doubtful provisions shall be interpreted to have created a personal right or obligation and not a servitude. Also refer to Art 1369.

SOURCES OF SERVITUDE

The right of servitude may arise from a contract, a will, acquisitive prescription or the provisions of the law.

  1. Servitudes arising from contracts; According to Art 1362/1/ of the Civil Code, a servitude may be created by an agreement or contract concluded between the owner/holder of the dominant tenement and the owner of the owner/holder of the servient tenement.
  2. Servitude may also arise from the will of the deceased person who divides his land holding between two or more persons. In other words, the testator who owns/holds a land may burden one of the lands with servitude of a certain type for the benefit of the legatee of another plot of land. See Art 1362/2/ of the Civil Code.
  3. Acquisitive Prescription; According to Art 1366 of the Civil Code, servitude may arise from enjoyment of the servient tenement for a period of ten years. However, this mode of acquisition applies only to apparent servitude. An apparent servitude is a servitude that requires certain external and visible or apparent structures or means for its enjoyment or exercise, which also evidence its existence. For Example, servitude of way or view may be considered as apparent because it may require construction of a lane or a window by which the servitude is enjoyed. In other words, non-apparent servitudes, i.e., servitudes whose enjoyment do not require installation or construction of external or apparent materials/structures may not be acquired by acquisitive prescription of ten years. The rational behind this rule seems to be clear, because in cases of apparent servitudes the owner of the servient tenement has the opportunity to see acts of interference by another person on his land and can object to the commission of the acts. Hence, the law does not protect a person who fails to do so for a long period. While in cases of the non-apparent servitude, the owner of the servient tenement does not have an opportunity to object to such acts since he might have not known the acts of the owner of the dominant tenement. See Art 1366/2/ and 1367 of the Civil Code.

However, a servitude acquired through acquisitive prescription shall not affect third parties unless its acquisition is registered in the register of immovable properties. For instance, the owner of the dominant tenement cannot exercise his right against the transferee of the servient tenement unless his rights are entered in the registers of immovable properties. See Art 1368 /2/ of the Civil Code.

  1. Servitude arising out of the provisions of the law. The contiguity of land belonging to different owners or occupied by different persons creates conflict if either or both of them wish to enjoy their lands without any consideration for the damages or annoyance caused to the other. These conflicts can be eliminated only by limiting the powers that the right of ownership usually involves. Specific provisions of the Civil Code, which determine what is allowed and what is prohibited, are intended to prevent some of these potential conflicts. Refer to the provisions of Art 1217, 1218, 1219, 1220, 1221-1224, 1245-1254, 1372/2/ of the Civil Code.

RIGHTS AND DUTIES OF THE PARTIES

The rights and duties of the parties shall be as specified in the instrument creating the servitude and as entered in the register of immovable properties. In other words, the rights and duties of the owner/holder of the servient tenement and the owner/holder of the dominant tenement shall be determined by the instrument creating the servitude, where the servitude is created by contract or will. However, where it is created by acquisitive prescription, the rights and duties of the parties shall be determined by the manner in which the servitude is created or enjoyed in good faith over a long period of time, i.e., usage. Furthermore, where the instrument creating the servitude does not contain provisions dealing with the rights and duties of the parties, or where such provisions are not valid or where the manner of its creation and enjoyment is not clear, the provisions of the Civil Code shall determine the rights and duties of the parties. See Art 1370 of the Civil Code.

With this introduction in mind, let us discuss the rights and duties of the parties.

RIGHTS AND DUTIES OF THE SERVIENT OWNER/HOLDER

The owner/holder of the servient tenement shall have the following rights and duties;

  1. The owner/holder of the servient tenement shall have the obligation to allow the owner/holder of the dominant tenement to use his land for the purpose for which the servitude is created and refrain from exercising certain rights such as the right to prevent other persons from entering his land or using his land. See Art 1359 of the Civil Code. He must also refrain from acts that reduce or impair the use of his land for the purpose required by the owner/holder of the dominant tenement. For example, he may not construct buildings or plant trees that impair the view or way of the owner of the dominant tenement. See Art 1379 of the Civil Code.
  2. He also has the obligation to perform works related to the construction, maintenance and repair of the means necessary for the exercise of rights of servitude by the owner of the dominant tenement, where under the instrument creating the servitude, he has undertaken such obligation. See Art 1373/2/
  3. The owner/holder of the servient tenement has the right to redeem the servitude where he can prove that the damages or inconveniences caused by the servitude are way higher than the benefits or advantages derived by the owner of the dominant tenement. See Art 1383 of the Civil Code. 
  4. The owner/holder of the servient tenement may require that the servitude be exercised on such other part of the servient tenement as will be equally convenient to the owner of the dominant tenement. See Arts 1380,1220(3)

RIGHTS AND DUTIES OF THE DOMINANT OWNER/HOLDER

  1. The owner/holder of the dominant tenement must exercise his rights in a manner, which causes minimum inconvenience or damage to the servient tenement. In addition to this, he may not make any alteration that would increase the burden of the servient tenement. See Art 1375
  2.  Where the dominant tenement is divided, the right of servitude shall continue for the benefit of the owners/holders of each parcel of land. However, such division shall not increase the burden of the servient tenement, and the owners/holders of the divided parcels of land shall exercise their rights, for instance right of way, using the same area or piece of the servient land. See Art 1377.
  3. Similarly, where the servient tenement is divided, the owner/holder of the dominant tenement shall have the right of servitude on each of the new parcels of land. See Art 1378.

TYPES OF SERVITUDE

        URBAN SERVITUDES AND RUSTIC/ RURAL SERVITUDES

Urban servitudes are servitudes created and enjoyed in urban areas. They include right of view, right of way and the various other servitudes arising out of the law such as the right to install water, gas or electrical lines. On the other hand, rural or rustic servitudes are those types of servitudes created and enjoyed in rural areas such as right of way or right to cross a parcel of land on foot, with animals, during the dead season, across fields, rights of pasture, watering animals, wood-cutting, irrigation.  See Art 1371 of the Civil Code.

   CONTINUOUS AND DISCONTINUOUS SERVITUDES

This classification is based on whether or not the right of servitude can continue without continuous human intervention. Hence, a continuous servitude is a servitude that continues without continuous human intervention. For example, Servitudes of view and drawing water are considered as continuous servitudes.

On the other hand, a discontinuous servitude is a servitude that cannot exist without a continuous human intervention. Therefore, for such kind of servitude to continue to exist, the beneficiary must continue to use /exercise the right created by it.

Servitudes of way or passage, pasturing cattle and servitude of extracting quarry are examples of discontinuous servitude. See Art 1382 of the Civil Code, which indicates that apparent servitudes are discontinuous servitudes since such servitude shall be extinguished if the owner of the dominant tenement fails to exercise his rights for a period of ten years. 

APPARENT AND NON-APPARENT SERVITUDES

Apparent servitudes are servitudes that are manifested by external works such as ditches, pipelines or an aqueduct, roads (means of enjoyment).

Servitude of drawing water, way… etc are examples this type of servitude. See Art 1366(1) and (2) of the Civil Code.

Non-apparent Servitudes are, on the other hand, servitudes whose existences are not manifested by external works necessary for their enjoyment by the owner of the dominant tenement. Servitudes of pasturing animals, cutting wood, and extracting quarry… etc are examples of non-apparent servitudes. See Art 1367 of the civil Code.

German Law classifies servitudes in to positive and negative servitudes based on the content of the right of servitude. Accordingly, a servitude is considered positive where it entities the owner of the dominant tenement to use the servient tenement for a specified purpose. Servitude of way, extracting quarry, drawing water are examples of this type of servitude.

On the other hand, servitude is considered a negative servitude where it imposes on the owner of the servient tenement the obligation to refrain from doing certain activities on his land, for example, from erecting certain kinds of buildings or planting trees. The owner of the dominant tenement does not have right to perform positive acts on the servient tenement. See Art 1359(2). Right of view is a very good example of a negative servitude.

EXTINCTION OF SERVITUDE

 Right of servitude shall be extinguished for any one of the following reasons.

  1. Waiver /release by the owner of dominant tenement. This ground of extinction is applicable to any kind of servitude. Waiver or release by the dominant owner/holder shall extinguish servitude only where it is made in writing and where the right that was registered in the register of immovable properties is cancelled or stricken out. See Art 1381(1) and (2) of the Civil Code.
  2. Disappearance of the apparent signs in cases of apparent servitudes or failure to exercise the right arising out of the servitude, and the cancellation of the entry of the servitude in the register of immovable properties up on the application of the owner/holder of the servient tenement. See Art 1381(3) and (1) and Art 1366 of the Civil Code.
  3. Redemption of the servitude by the owner of the servient tenement; According to Art 1383 of the Civil Code, the owner/holder of the servient tenement may buy the servitude back where the continuation of the servitude damages the value of the servient tenement and, hence, is contrary to the national economy or public interest or where the benefits deriven by the owner/holder of the dominant tenement are lesser than the damages it causes to the servient tenement. See Arts 1384 and 1385 of the Civil Code.
  4. Surrender of the servient tenement to the owner of the dominant tenement; Servitude shall be extinguished where the owner/holder of the servient tenement has an obligation to perform positive works such as construction, maintenance and repair of means of enjoyment and is not able or willing to cover the costs, and surrenders the sevient tenement to the owner of the dominant tenement. See Art 1374.


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