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20/03/2020 | Buy a property

Servitudes: restrictions related to the property

Servitudes: restrictions related to the property

When buying a house, you may discover that the property you are interested in is covered by a servitude or even several servitudes. You may use the servitude, such as the right to pass through and drive through your neighbour’s plot in order to access your property, but servitude may also act as a restriction affecting your property. What is it exactly, and what are the related advantages, disadvantages, and duties?

Land servitudes

When speaking of land servitudes, we usually think of the right to walk through and drive through a plot owned by a neighbour. But not only that. The Swiss Civil Code defines land servitude as follows: “Servitude is a duty imposed on a property (servient estate) towards another property (dominant estate), committing the owner of the servient estate to allow the owner of the dominant estate to perform certain actions or abstain from enforcing certain rights related to the property.” Certainly, servitude is a more or less visible or burdensome restriction imposed on a property owner to the benefit of an owner of another property or the municipality.

Contractual land servitudes

The most frequent option to establish land servitude is a written agreement between two owners, stipulating in detail the nature of such servitude. Servitude is then recorded in the Land and Mortgage Register, and the agreement is attached to the notarial deed. Servitude thus, generally speaking, is imposed by an agreement between two owners. In the event of a dispute, the entries in the Land and Mortgage Register and the notarial deed shall be binding. Therefore, it is important to define all the rights and responsibilities well.
The most frequent example of servitude is the right of passage (to walk through and drive through): a neighbour gets access to one’s land by walking or driving through the property. In order to avoid later conflicts, all routes (e.g. passage of a 4-metre-wide road without going out of the footage) must be set well, preferably by a geodetic technician.
The servitude of view is also popular. It involves restrictions in cutting windows, making a bay window, or another opening that would allow direct observation of a neighbouring house; this is aimed at respecting the privacy of each owner.
In some cases, if servitude affects the servient estate too much, the owner of the dominant estate may pay compensation related thereto, at an amount agreed freely between both owners.

Statutory land servitudes

Statutory servitudes are restrictions imposed by the authorities, usually the municipalities, or related to spatial management rules. Therefore, they are not a result of an agreement between owners. This sort of servitude can refer to restricting the height of the buildings, right to conduct utilities (water, gas, sewer, etc.), or ban on noisy business, or construction of an additional building facility on your land. Statutory servitudes have the nature of public servitudes.

Rights and responsibilities of owners

Beneficiaries of servitudes cannot exceed the limits agreed with the owner of the land covered with servitude. If it is a road, as it often happens, the beneficiary must maintain it, cut the hedges, etc., even if he must access the (private) property of one’s neighbour for this purpose. To conclude, beneficiaries of the right of passage must assure maintenance of the road, and pay the related cost, if required, unless the servient road is not covered with another servitude, in which case the costs are shared.

Servitude expiry

Some servitude rights are old and assigned to a property for many years. Servitude is entered in the Land and Mortgage Register, and does not disappear when the property is sold. Each new owner of the servient property is obligated to follow its terms.
Nevertheless, servitude may expire. The owner of the dominant estate may waive it because it is not used or, in the case of the right of passage, for example, because there is no reason why the servitude should exist. Expired servitudes must be removed from the Land and Mortgage Register.
Certainly, servitude is waived automatically if the servient estate and the dominant estate disappear. This may happen, for example, if such lands are purchased by the same owner who no longer needs servitude, or if the municipality decides to proceed with expropriation because the lands are needed for any reason, or if the area is destroyed by a natural disaster, etc.

Are you concerned? Do not hesitate to ask!

Servitude may affect the property more or less, but sometimes it can become a source of conflicts between neighbours. Therefore, it is important to know whether a property is encumbered with servitude and to know the exact nature thereof; particularly, if you are to become the new owner of the servient estate. The seller is certainly obligated to inform you about this, so do not hesitate to ask in order to be aware of all the duties before you decide to buy. Your real estate agent will also be able to explain this to you in detail.

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