The Legal Framework of a Servitude Dispute
A servitude and the related right of superficies belong to those encumbrances of immovable property which charge one plot for the benefit of another, and for that reason they often become the subject of disputes: who has what right over another's land, on which conditions, and to what extent that right may be exercised. A plot of land may be transferred to another person for temporary use in such a way that the person has the right to erect a structure on or under the plot, together with the right to alienate, transfer by inheritance, lend and lease that right — the right of superficies. The right of superficies may extend to the part of the plot that is not necessary for the superficies but gives the possibility of better use of the structure. The term of the right of superficies is determined by the parties' agreement and must not exceed ninety-nine years.
The Conditions of a Servitude and the Limits of Its Exercise
The law confines the existence of a servitude to two conditions. First: a servitude may exist only where it gives the entitled person an advantage in the use of his own plot — the encumbrance is justified only where it is connected to a real benefit, and an artificially created need cannot ground it. Second: in exercising the servitude the entitled person must have due regard to the interests of the owner of the charged plot — the exercise of the right may not become a cause of damage. Failure of these two conditions is the principal ground of servitude disputes: the charged party invokes the absence of an advantage, and the entitled party — the disregard of the owner's interests. Both conditions are evaluative: the advantage connects with the actual designation and location of the plot, and the disregard with the concrete manner of exercise — time, frequency and technical means.
The Remuneration and the Consequences of Non-Payment
The holder of the right of superficies may, by contract, be charged with the payment of remuneration, and this right of the owner of the plot is inseparable from the right of ownership of the plot — it follows the plot to a new owner as well. Non-payment has a serious consequence: the right of superficies may be terminated unilaterally by the owner where the obligation has remained unperformed for 2 years, unless the parties' agreement provides otherwise. The law also defines the flexibility of the amount: the parties may fix the remuneration at intervals of ten years, and where economic conditions change substantially the parties are obliged to agree anew on the remuneration. The remuneration is thus not a figure fixed once and forever — it is corrected over time, and its non-payment destroys the right itself.
Registration of the Compensation Claim and the Personal Servitude
After the termination of the right of superficies, the right to compensation arising from the superficies — where it exists — takes the place of the right of superficies in the public registry and replaces it in the same order; and if at the expiry of its term the right of superficies is still encumbered by a mortgage, the mortgagee has the right of pledge over the compensation claim. This guarantee gives the compensation claim registered protection and preserves its value even after the extinction of the right. A distinct institution is the personal servitude: an immovable may be encumbered by a servitude for the benefit of a person under the condition provided by law; such an encumbrance may consist in the entitled person's right to use a building or part of it as a dwelling for himself or his family to the exclusion of the owner. Such a restricted personal servitude is not transferred to other persons — it attaches closely to its holder.
Frequently Asked Questions
Below we answer the questions most frequently asked on this subject.
On which conditions does a servitude exist?
Only where it gives the entitled person an advantage in the use of his plot, and where in its exercise he has due regard to the interests of the owner of the charged plot.
What happens if the remuneration is not paid?
After 2 years of non-performance the owner may unilaterally terminate the right of superficies, unless the agreement provides otherwise.
For what term may a superficies be established?
By agreement of the parties, for no more than ninety-nine years.
Can a personal servitude be transferred?
No — a restricted personal servitude, for example a dwelling-use right, is not transferred to other persons.
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A servitude dispute demands precise knowledge of the content of the encumbrance, the remuneration rules and registered protection. On Legal.ge you can consult a real-property lawyer who will assess your rights and protect your interests in negotiation and in court. Submit a request on the site and receive qualified assistance.