Servitudes – Special rules for creating predial servitudes by title

Servitudes – Special rules for creating predial servitudes by title

Art. 710. Naked owner. The naked owner may establish a predial servitude that does not infringe on the rights of the usufructuary or that is to take at the effect at the termination of the usu­fruct. The consent of the usufructuary is required for the establishment of any other predial servitude.

Art. 711. Usufructuary. The usufructuary may not establish on the estate of which he has the usufruct any charges in the nature of predial servitudes.

Art. 709. Mandatary. A mandatary may establish a predial servitude if he has an express and special power to do so.

Art. 735. Persons acquiring servitude. A predial servitude may be acquired for the benefit of the dominant estate by the owner of that estate or by any other person acting in his name or in his behalf.

Art. 736. Capacity to acquire servitude. An incompetent may acquire a predial servitude for the benefit of his estate without the assistance of the administrator of his patrimony or of his tutor or curator.

Art. 712. Owner for a term or under condition. A person having ownership subject to a term or the happening of a condition may establish a predial servitude, but it ceases with his right.

Art. 713. Purchaser with reservation of redemption. A purchaser under a reserved right of redemption may establish a predial servitude on the property, but it ceases if the seller exercises his right of redemption. A predial servitude on an estate owned in indivision can only be established with the consent of all the co-owners. C.C. art. 714.

Art. 714. Co-owner; servitude on entire estate. A predial servitude on an estate owned in indivision may be established only with the consent of all the co-owners. “When a co-owner purports to establish a servitude on the entire estate, the con­tract is not null; but, its execution is suspended until the consent of all co-owners is obtained.

Art. 716. Servitude on undivided part. “When a co-owner has consented to the establishment of a predial servitude on his undivided part only, the consent of the other co-owners is not required, but the exercise of the servitude is suspended until his divided part is determined at the termination of the state of indivision.

Art. 717. Partition in kind. If the estate owned in indivision is partitioned in kind, the servitude established by a co-owner on his undivided part burdens only the part allotted to him.

Art. 718. Partition by licitation. If the estate is partitioned by licitation and the co-owner who consented to the establishment of the predial servitude acquires the ownership of the whole, the servitude burdens the entire estate as if the co-owner had always been sole owner. If the entire estate is adjudicated to any other person the right granted by the co­-owner is extinguished.

Art. 726. Servitude on after-acquired property. Parties may agree to establish a predial servitude on, or for the benefit of, an estate of which one is not then the owner. If the ownership is acquired, the servitude is established. Parties may agree that a building not yet built will be subjected to a servitude or that it will have the benefit of a servitude when it is built.

Art. 720. Additional servitudes. The owner of the servient ,estate may establish thereon additional servitudes, provided they do not affect adversely the rights of the owner of the dominant estate.

Art. 724. Multiple dominant or servient estates. A predial servitude may be established on several estates for the benefit of one estate. One estate may be subjected to a servitude for the benefit of several estates.

Art. 725. Reciprocal servitudes. The title that establishes a servitude for the benefit of the dominant estate may also establish a servitude on the dominant estate for the benefit of the servient estate.

Art. 727. Servitude on part of an estate. A predial servitude may be established on a certain part of an estate, if that part is sufficiently described.

Art. 728. Limitation of use. The use of a predial servitude may be limited to certain times. Thus, the rights of drawing water and of passage may be confined to designated hours.

Art. 750. Location of servitude when the title is silent. If the title does not specify the location of the servitude, the owner of the servient estate shall designate the location.

Art. 721. Servitude on mortgaged property. A predial servitude may be established on mortgaged property. If the servitude diminishes the value of the estate to the substantial detriment of the mortgagee, he may demand immediate payment of the debt. If there is a sale for the enforcement of the mortgage the property is sold free of all servitudes established after the mortgage. In such a case, the acquirer of the servitude has an action for the restitution of its value against the owner who established it.

Art. 723. Servitudes on public things. Predial servitudes may be established on public things, including property of the state, its agencies and political subdivisions.