Authored by Patrick Bracher.
In April 2025 the Constitutional Court interpreted a servitude that allowed one neighbour access to, and the right to tend a garden, on part of the property of the other neighbour as a personal servitude binding both properties but not a praedial servitude binding both current and future owners in perpetuity. As a personal servitude for the sole benefit of the current owner, it could not be extended beyond the owner’s lifetime at the latest.
The property was transferred in September 1983 under conditions according to which the seller had the right to plant, control, care for and renew the existing garden situated within the servitude area and that no wall or fence should be erected to prevent doing so, with full rights of access. A new owner from 2017 sought to erect a fence and deny the neighbour’s rights.
A servitude is a real right carved out of the full ownership of a property owner and transferred to another. It is a limited real right that imposes a burden on movable or immovable property by restricting the rights, powers and liberties of the owner in favour of another person. Praedial servitudes involve immovable properties and confer rights on one property, the dominant property, over another, the servient property on which it imposes corresponding burdens. There is no limit to the kinds of lawful praedial servitudes that may be registered subject to certain limitations depending on whether they are urban or rural properties. A personal servitude, on the other hand, is a real right of use vesting in a person, attaching to that person not to the dominant property. Whether it is one or the other depends on the intention of the parties gathered from the terms of the servitude. It is a contract interpreted like any other contract by holistically and simultaneously considering the text, context and purpose. The courts consider duality, vicinity, perpetuity, utility and passivity. Duality and vicinity were fulfilled because there were two separately-owned adjacent properties. The owners of the servient property had no positive duties thus satisfying the passivity requirement. The questions of perpetuity and utility were then considered. The court held that the utility requirement was not satisfied. There was no evidence that the servitude improved the market value of the dominant property and value enhancement was not sufficient in itself to satisfy the utility requirement. There was no basis for such a finding and the garden servitude was held not to be a praedial servitude in perpetuity.
Nonetheless, the servitude was lawfully registered as a personal servitude despite the servitude suggesting that it extended beyond the lifetime of the seller. The servitude was a personal servitude of use but its purported registration beyond the lifetime of the seller was unlawful and was corrected by the judgment.
This judgment includes a detailed examination of the law of servitudes dating back to Roman times, which will be of particular interest when issues of this nature arise or servitudes are being drafted.