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The Right to Servitude


Author: Radu Ţurcanu
Degree:doctor of law
Speciality: 12.00.03 - Private Law (with specification: Civil, Family, Civil Procedure Law, Notary, Business, Informational, Private International, Labour Law, Social Protection Law)
Year:2005
Institution:
Scientific council:

Status

The thesis was presented on the 4 March, 2005
Approved by NCAA on the 23 June, 2005

Abstract

Adobe PDF document – 0.41 Mb / in romanian

Summary

The neighbouring relations, that are quite various, include in their sphere a great number of difficult situations that often end up with conflicts. These conflicts appear between the landowners or owners of other adjacent land plots. The present work is a theoretical presentation of the servitudes, proved by its title “The Right to Servitude”. The work deals with a series of theoretical aspects concerning the servitudes domain, also emphasized by different specialty works that appeared in this field. The approach of this institution of civil law is conditioned by the real estate market development, that imposes new tasks on the legislator to regulate the relations appeared between the owners of adjacent lands. The diversification and intensification of ownership relations raise new problems as regards their regulation. The present work pursues the goal to elaborate, in general aspects, the notion of servitude right, to characterize the creation, practicing and methods of implementation of this right in compliance with other countries’ legislation that have such an institute in order to make a generalization of the legal provisions which regulate the right to servitude.

The research intention is not limited to the elaboration of a theoretical thesis, but it is aimed to reflect the essential problems that raise before those who want to study more closely this institute and to recommend some solutions. For this reason we tried to avoid to address too often the doctrine, the judicial practice or comparative law. The actuality of this work is determined by scientific argumentation of the right to servitude, by particularities of the adjacent lands.

For the first time in the modern legislation of the Republic of Moldova there are regulated a series of real rights, such as - servitudes, usufruct, use, etc. Because these real rights restrict the owner rights, it is needed a more detailed regulation of their titular rights, the limits and the conditions in what these rights can be exercised and, particularly, the correlation between rights of titulars of other real rights and the owner’s rights. It were emphasized the servitudes that are set up by established destination of the owner, by legal acts and by usucaption. In order to implement the enumerated objectives, the work was divided in three chapters, which, in their turn, were divided in sections and paragraphs.

The first Chapter, entitled, “General Сonsiderations on the Right to Servitude”, has a theoretical character. It is divided in three big sections. The first section examines doctrinal approaches to the notion of servitude - dismemberment of the right of ownership known in the national and foreign legislation. In the second section the notion of servitude is considered from the historical point of view, since it emerged till present.

The same section is also focused on the historical and legal characters of servitude right. The next Section is dedicated to the classification of servitudes. The research was based on the comparative analysis of legislations that provide for such institute.

The Chapter II is focused on the analysis of “The Servitudes Established by Human Action” and the examination of legal provisions on the constitution of servitudes established by the owner, as the most veritable servitudes. This Chapter, in its turn, is divided in three sections. The first section is aimed to make a general presentation concerning the creation of servitudes by the owner, to make a distinction between these servitudes and the restrictions of the right of property, to determine the scope of application and its subject. The second section was dedicated to the legal nature of the most frequent servitudes established by the human action. It this section there were also examined the methods of establishing the servitude, the differences between the established servitude of the owner and usufruct, use and the personal occupation, basing on the actual provisions of the legislation with the concretisation of its content and proposal to amend some provisions of the legislation. This Chapter also determines the methodology of the research, makes the comparison between the inherited and personal servitudes, determines more clearly the essence and the particularity of inherited servitudes.

The Chapter III, entitled, “The Creation, Exercising and Ceasing the Servitude Right” represents a study of procedures provided by legislation on creation, obtaining and exercising of the servitude right. Generally, this Chapter is focused on these issues, and also, analyses reasons of appearance of the legal right to servitude, content and methods of exercising this right. The first section contains general considerations regarding the establishment of servitudes by the owner destination, by legal act and by usucaption. It also demonstrates the modalities of creation and the controversy concerning the admissibility of the servitudes by usucaption. The second section of the above mentioned Chapter deals with the possible rights and obligations of the owner of dominant land, and also of the owner of subservient land, the possible actions that result from servitudes in the Court. There were proposed amendments that might facilitate resolution the arisen litigation. The third section, entitled “The Ceasing of the Servitude”, regulates the legal cases of extinction of this right, as well as emphasizes the ceasing of servitudes in case of indivisibility and in case of its establishing by the owner.

We consider that this research will allow, taking into consideration the negative futures of the regulations on the right to servitude at the actual phase, to create an optimal model for civil legislation of the Republic of Moldova as an independent developing state. In present, it is extremely important when the Republic of Moldova has adopted its new Civil Code.