Servitude in Roman law

Servitude in Roman law

A servitude is a qualified beneficial interest severed or fragmented from the ownership of an inferior property (servient estate) and attached to a superior property (dominant estate) or to some person (personal beneficiary) other than the owner. Servitudes are either positive or negative. A negative servitude would prevent the owner from doing specified acts (for example building higher), while a positive one would require the owner to permit the beneficiary of the servitude to do positive acts on the property (for example a right of way). The principal means of creating servitudes in the classical period seems to have be assignment in court ( cessio in jure).

Classification

There were two types of servitude: praedial servitudes and personal servitudes. In praedial servitudes, both the benefit and the burden of the servitude are attached to particular immovables. In personal servitude, the benefit was held by a particular person, while the burden could be on any tangible property, including movables, animals and slaves.

Praedial servitudes were further subdivided into two categories: rustic and urban.

Rustic praedial servitudes are very ancient in origin, the four principal ones, iter, via, actus and aqu'ductus, all appeared in the Twelve Tables. These were rights of way and water rights which were fairly similar to common law easements in that they gave a right to use the land for a specific restricted purpose. Other rustic praedial servitudes were similar to common law profits a prendre. These included rights to burn lime, draw water pasture cattle and the like. Unlike their common law equivalents, however, these rights can only be exercised by the owner of a dominant property, they cannot exist " in gross" as personal rights.

Urban praedial servitudes were concerned with the rights relating to urban land. They included duties not to build higher, not to obstruct a neighbour's light, and duties to support a neighbours wall and receive his rainfall spill. Gaius mentions several of these as having counterservitudes such as a right to build higher or a right to obstruct a neighbour's light. These seem to be rights which any owner whose land was not subject to a servitude would possess, and for this reason their exact function is uncertain. They may have been rights to do these things against local regulations to the contrary or perhaps they were methods of partially releasing the servient owner from the burden of an existing servitude.

Personal Servitudes. The second division of servitudes was personal servitudes. These were similar to praedial servitudes insofar as they were rights held over another's property, however they were different in that the benefit of the servitude was held by an individual, rather than a specific other property. There were further differences in that there could be a personal servitude over movable as well as immovable property. There were four types of personal servitudes. The main personal servitude was the usufruct. This was a right to use and take the fruits of the burdened property. Although the usufruct was a fairly extensive right, it was subject to some restrictions. During the classical period the usufructuary (beneficiary of the usufruct) was only allowed to use the property as the donor had done, though this rule was relaxed in later law. The usufructuary had to provide security which would be lost if this condition was broken. If a usufruct was held over a slave or an animal the fruits included any young of the animal, but not children of the slave. In a usufruct of land, any rent from tenants would be regarded as fruits of the property. It seems that a senatusconsultum from the time of Augustus even allowed a quasi-usufruct over property which was consumed by use, such as money, provided the usufructuary gave security for the value of the property to go to the owner on expiry of the usufruct. Other personal servitudes were more limited. Usus only allowed the use of the property, not it fruits. Habitatio and operae servorum vel animalum were similar to usus, except they could only be exercised over a dwelling house and a slave or animal respectively, and had slightly different rules applying to them.