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Roman law of servitudes 2024/2025 ;100% complete newest version guide (verified)
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Roman law of servitudes- Danger of overburdening property
- Danger of stripping idea of ownership of all its real content
- More types of rights in rem law recognises, the more difficult it will be for prospective
purchasers of the ownership of that property to know of that servitude's existence so detract
from market in land and property.
- Tension between dominus and servitude owner (SC recognises this arg in Hunter v Canary
Wharf) - ANS-Disadvantages of servitudes
- Must be economically beneficial to the dominant land, not just person owning the land for the
time being.
- Must be exercised reasonably - so does as little damage and inconvenience to the servient
land owner
- Could not impose active duties on servient land owner - ANS-Rustic praedial servitude rules
- Promotes greater use of property (land finite supply)
- Public and economic benefit: servitude over plot B enhances price of it more than it detracts
from price of plot A
- Respecting wishes of the parties e.g. wills - ANS-Advantages of servitudes
"Usufruct is the right to use and enjoy the things of another without impairing their substance."
Paul
- can't damage property but can use it in full
- like dominus but has obligations to dominus - ANS-Usufruct
(1) originated in Rome, (2) in provinces
(1) needs physical handing over of servitude, whereas latter needed only an agreement so less
needed
- downside of this was that less obvious to outside world so meant buyers of servient land had
less chance of knowing that it was burdened by a servitude. - ANS-Difference: (1) quasi-traditio
plus patientia vs (2) pact and stipulation
1. Destruction of property
- Must exist in benefit of land and burden anther. If one land destroyed then cannot
2. Non-use
- At first 2 years enough, then 10 if in same province. (so dont overburden land)
2. Merger
- Two plots come into ownership of one person
, 4. Release
- Servitude owner gives it up - ANS-Extinction of rustic praedial servitudes
1. No servitude over a servitude
2. Rights in another's property only (unless land is abandoned, then servitude exists not over
someone else's property, but over abandoned property)
3. Cannot be possessed as is incorporeal - ANS-General rules of servitudes
1. Usucapio
- until 1stC BC when lex Scribonia banned usucapio of servitudes
2. Long use giving rise to praetorian protection
- uninterrupted exercise of a "right" for a number of years
- Required not with force, secrecy or without owners permission
- no requirement of good faith or iusta causa
- fiction that right had been expressly given before
3. Longi temporis praesciptio
- Long use subsumed within this by Justinian
- Long use itself creates the right (not fiction) - 10 years same province, or else 20 years
Note: requirement that nec vi, nec clam, nec precario because:
- don't want those using force to give themselves rights
- those being secretive - owner themselves expressly created right is assumption in long use,
and this assumption cannot be met if secretive.
- Without permission as if B actually gives A permission to use his land, then A can't acquire
servitude by long use. - ANS-Creation by effluxion of time
6 forms:
1. Mancipatio (only rustic praedial)
2. In iure cessio
3. Deductio
If A owns all land, relapses that if he sells right hand plot, he won't have access to the road, so
as he mancipates land to B, he can deduct a servitude in his favour.
4. By will
5. Quasi-traditio plus patientia (informal)
Traditio could not be used to create a servitude as servitudes are incorporeal things and for
traditio, had to deliver physical possession.
However, texts that modified form of traditio used to form a servitude.
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