Louisiana Notary

A Civil Law Tradition

Servitudes

Servitudes – Examples of predial servitudes

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Servitudes – Examples of predial servitudes

Art. 699. Examples of predial servitudes. The following are examples of predial servitudes: Rights of support, projection, drip, drain, or of preventing drain, those of view, of light, or of preventing view or light from being obstructed, of raising buildings or walls, or of preventing them from being raised, of passage, of drawing water, of aqueduct, of watering animals, and of pasturage.

Art. 700. Servitude of support. The servitude of support is the right by which buildings or other constructions of the dominant estate are permitted to rest on a wall of the servient estate. Unless the title provides otherwise, the owner of the servient estate is bound to keep the wall flt for the exercise of the servitude, but he may be relieved of this charge by abandoning the wall.

Art. 701. Servitude of view. The servitude of view is the right by which the owner of the dominant estate enjoys a view; this includes the right to prevent the raising of constructions on the servient estate that would obstruct the view.

Art. 702. Prohibition of view. The servitude of prohibition of view is the right of the owner of the dominant estate to prevent or limit openings of view on the servient estate.

Art. 703. Servitude of light. The servitude of light is the right by which the owner of the dominant estate is entitled to make openings in a common wall for the admission of light; this includes the right to prevent the neighbor from making an obstruction.

Art. 704. Prohibition of light. The servitude of prohibition of light is the right of the owner of the dominant estate to prevent his neighbor from making an opening in his ow wall for the admission of light or that limits him to certain lights only.

Art. 705. Servitude of passage. The servitude of passage is the right for the benefit of the dominant estate whereby persons, animals, utilities, or vehicles are permitted to pass through the servient estate. Unless the title provides otherwise, the extent of the right and the mode of its exercise shall be suitable for the kind of traffic or utility necessary for the reasonable use of the dominant estate.

Servitudes – Apparent and non-apparent predial servitudes

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Servitudes – Apparent and non-apparent predial servitudes

Art. 707. Servitudes; apparent or nonapparent. Predial servitudes are either apparent or nonapparent. Apparent servitudes are those that are perceivable by exterior signs, works, or constructions; such as a roadway, a window in a common wall, or an aqueduct. Nonapparent servitudes are those that have no exterior sign of their existence; such as the prohibition of building on an estate or of building above a particular height.

Art. 739. Acquisition by title only. Nonapparent servitudes may be acquired by title only, including a declaration of destination under Article 741.

Servitudes – Affirmative and negative predial servitudes

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Servitudes – Affirmative and negative predial servitudes

Art. 706. Servitudes; affirmative or negative. Predial servitudes are either affirmative or negative. Affirmative servitudes are those that give the right to the owner of the dominant estate to do a certain thing on the servient estate. Such are the servitudes of right of way, drain, and support. Negative servitudes are those that impose on the owner of the servient estate the duty to abstain from doing something on his estate. Such are the servitudes of prohibition of building and of the use of an estate as a commercial or industrial establishment.

Servitudes – Conventional or voluntary servitudes

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Servitudes – Conventional or voluntary servitudes

Art. 697. Right to establish predial servitudes; limitations. Predial servitudes may be established by an owner on his estate or acquired for its benefit. The use and extent of such servitudes are regulated by the title by which they are created, and, in the absence of such regulation, by the following rules.

Art. 698. Property susceptible of servitudes. Predial servitudes are established on, or for the benefit of, distinct corporeal immovables.

Art. 731. Charge expressly for the benefit of an estate. A charge established on an estate expressly for the benefit of another estate is a predial servitude although it is not so designated.

Art. 733. Interpretation; benefit of dominant estate. When the right granted be of a nature to confer an advantage on an estate, it is presumed to be a predial servitude.

Art. 734. Interpretation; convenience of a person. When the right granted is merely for the convenience of a person, it is not considered to be a predial servitude, unless it is acquired by a person as owner of an estate for himself, his heirs and assigns.

Servitudes – Right of passage

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Servitudes – Right of passage

Art. 689. Enclosed estate; right of passage. The owner of an estate that has no access to a public road or utility may claim a right of passage over neighboring property to the nearest public road or utility. He is bound to compensate his neighbor for the right of passage and to indemnify his neighbor for the damage he may occasion. New or additional maintenance burdens imposed upon the servient estate or intervening lands resulting from the utility servitude shall be the responsibility of the dominant estate.

Art. 690. Extent of passage. The right of passage for the benefit of an enclosed estate shall be suitable for the kind of traffic or utility that is reasonably necessary for the use of that estate.

Art; 691. Constructions. The owner of the enclosed estate may construct on the right-of-way the type of road, utility, or railroad reasonably necessary for the exercise of the servitude. The utility crossing shall be constructed in compliance with all appropriate and applicable federal and state standards so as to mitigate all hazards posed by the passage and the particular conditions of the servient estate and intervening lands.

Art. 692. Location of passage. The owner of the enclosed estate may not demand the right of passage or the right-of-way for the utility anywhere he chooses. The passage generally shall be taken along the shortest route from the enclosed estate to the public road or utility at the location least injurious to the intervening lands. The location of the utility right-of-way shall coincide with the location of the servitude of passage unless and alternate location providing access to the nearest utility is least injurious to the servient estate and intervening lands. The court shall evaluate and determine that the location of the servitude of passage or utility shall not affect the safety of operations or significantly interfere with the operations of the owner of the servient estate or intervening lands prior to the granting of the servitude of passage or utility.

Art. 693. Enclosed estate; voluntary act. If an estate becomes enclosed as a result of a voluntary act or omission of its owner, the neighbors are not bound to furnish a passage to him or his successors.

Art. 694. Enclosed estate; voluntary alienation or partition. When in the case of partition, or a voluntary alienation of an estate or of a part thereof, property alienated or partitioned becomes enclosed, passage shall be furnished gratuitously by the owner of the land on which the passage was previously exercised, even if it is not the shortest route to the public road or utility, and even if the act of alienation or partition does not mention a servitude of passage.

Art. 695. Relocation of servitude. The owner of the enclosed estate has no right to the relocation of this servitude after it is fixed. The owner of the servient estate has the right to demand relocation of the servitude to a more convenient place at his own expense, provided that it affords the same facility to the owner of the enclosed estate.

Servitudes – Common walls and enclosures

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Servitudes – Common walls and enclosures

Art. 673. Common wall servitude. A landowner who builds first may rest one-half of a partition wall on the land of his neighbor, provided that he uses solid masonry at least as high as the first story and that the width of the wall does not exceed eighteen inches, not including the plastering which may not be more than three inches in thickness.

Art. 685. Common fences. A fence on a boundary is presumed to be common unless there is proof to the contrary. When adjoining lands are enclosed, a landowner may compel his neighbors to contribute to the expense of making and repairing common fences by which the respective lands are separated. When adjoining lands are not enclosed, a landowner may compel his neighbors to contribute to the expense of making and repairing common fences only as prescribed by local ordinances.

Art. 686. Common ditches. A ditch between two estates is presumed to be common unless there be proof to the contrary. Adjoining owners are responsible for the maintenance of a common ditch.

Servitudes – Legal servitudes

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Servitudes – Legal servitudes

Art. 659. Legal servitudes; notion. Legal servitudes are limitations on ownership established by law for the benefit of the general public or for the benefit of particular persons.

Art. 660. Keeping buildings in repair. The owner is bound to keep his buildings in repair so that neither their fall nor that of any part of their materials may ca.us damage to a neighbor or to a passerby.

Art. 667. Limitations on use of property. Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.

Art. 672. Other legal servitudes. Other legal servitudes relate to common enclosures, such as common walls, fences and ditches, and to the right of passage for the benefit of enclosed estates.

Servitudes – Natural servitudes

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Servitudes – Natural servitudes

Art. 655. Natural drainage. An estate situated below is the servient estate and is bound to receive the surface waters that flow naturally from a dominant estate situated above unless an act of man has created the flow.

Art. 656. Obligations of the owners. The owner of the servient estate situated below may not do anything to prevent the flow of the water. The owner of the dominant estate situated above may not do anything to render the servitude more burdensome.

Servitudes – Kinds of predial servitudes

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Servitudes – Kinds of predial servitudes

Art. 654. Kinds of predial servitudes. Predial servitudes may be natural, legal, and voluntary or conventional. Natural servitudes arise from the natural situation of estates; legal servitudes are imposed by law; and voluntary or conventional servitudes are established by juridical act, prescription, or destination of the owner.

Art. 729. Conventional alteration of legal or natural servitude. Legal and natural servitudes may be altered by agreement of the parties if the public interest is not affected adversely.

Servitudes – Predial Servitudes

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Servitudes – Predial Servitudes

Art. 646. Predial servitude; definition. A predial servitude is a charge on a servient estate for the benefit of a dominant estate. The two estates must belong to different owners.

Art. 647. Benefit to dominant estate. There must be a benefit to the dominant estate. The benefit need not exist at the time the servitude is created; a possible convenience or a future advantage suffices to support a servitude. There is no predial servitude if the charge imposed cannot be reasonably expected to benefit the dominant estate.

Art. 648. Contiguity or proximity of the estates. Neither contiguity nor proximity of the two estates is necessary for the existence . of a predial servitude. It suffices that the two estates be so located as to allow one to derive some benefit from the charge on the other.

Art. 649. Nature; incorporeal immovable. A predial servitude is an incorporeal immovable.

Art. 650. Inseparability of servitude. A. A predial servitude is inseparable from the dominant estate and passes with it. The right of using the servitude cannot be alienated, leased, or encumbered separately from the dominant estate.

B. The predial servitude continues as a charge on the servient estate when owner­ship changes.

Art. 652. Indivisibility of servitude. A predial servitude is indivisible. An estate cannot have upon another estate part of a right of way, or of view, or of any other servitude, nor can an estate be charged with a part of a servitude. The use of a servitude may be limited to certain days or hours; when limited, it is still an entire right. A servitude is due to the whole of the dominant estate and to all parts of it; if this estate is divided, every acquirer of a part has the right of using the servitude in its entirety.

Art. 747. Division of dominant estate. If the dominant estate is divided, the servitude remains due to each part, provided that no additional burden is imposed on the servient estate. Th s, in case of a right of passage, all the owners are bound to exercise that right through the same place.

Art. 651. Obligations of the owner of the servient estate. The owner of the servient estate is not required to do anything. His obligation is to abstain from doing something on his estate or to permit something to be done on it. He may be required by convention or by law to keep his estate in suitable condition for the exercise of the servitude due to the dominant estate. A servitude may not impose upon the owner of the servient estate or his successors the obligation to pay a fee or other charge on the occasion of an alienation, lease, or encumbrance of the servient estate.

Art. 748. Noninterference by the owner of servient estate. The owner of the servient estate may do nothing tending to diminish or make more inconvenient the use of the servitude. If the original location has become more burdensome for the owner of the servient estate, or if it prevents him from making useful improvements on his estate, he may provide another equally convenient location for the exercise of the servitude which the owner of the dominant estate is bound to accept. All expenses of relocation are borne by the owner of the servient estate.