Servitudes

Question 1

What is iura in re aliena?

Answer 1

Rights in rem that was not ownership- in this case it is a servitude

Question 2

What is a servitude?

Answer 2

A right exercised over some land over which he was not dominus. It was either for the benefit of the person (personal servitudes) or for the benefit of the land over which he was dominus.

Question 3

What are praedial servitudes?

Answer 3

Rights exercisable by a person as owner of land over other land of which he was not dominus.

Question 4

What were the characteristics of praedial servitudes?

Answer 4

Considered to be burdens upon the land over which they existed. They imposed limitations on the serviant owner’s control of his property. Thus, it had to be exercised so as to cause him minimum of inconvenience

Once created praedial servitudes were perpetual

Two pieces of land had to be adjacent

Question 5

How can you differentiate between rustic and urban servitudes?

Answer 5

Those that need buildings to be fully effective are urban. It is also possible to think of servitudes as continuous and discontinuous. Urban servitudes are continuous- e.g. the right to light. Conversely, rustic servitudes are exercise irregularly.

Rustic servitudes are positive while urban servitudes are negative. The exception to this is the right of support as the serviant owner needed to upkeep this support system- regarded as a positive obligation

Question 6

What are the four rustic servitudes?

Answer 6

Iter
Actus
Via
Aquaeductus

Question 7

What were the general requirements of the servitudes?

Answer 7

They had to be for the benefit of the dominant land

They had to be for the benefit of the dominant tenemennt

Question 8

How were rustic servitudes created?

Answer 8

They were res Mancipi so mancipatio was sufficient

Question 9

What rustic servitudes were later created?

Answer 9

diging sand and right to pasture and cattle- the broadening of the category of praedial servitudes from the original four is a demonstration that new rights could go on arising and being accepted so long as they satisfied the general requirements of servitudes

Question 10

What were the urban servitudes?

Answer 10

Right to light
Right to support
Restrictions on the height of buildings

Of these servitudes, the right of support appears to breach the rule that a servitude could not impose a positive duty on the servient owner- it was the duty of the servient owner to keep in repair the support wall. In this case the support wall was an integral part of the servient tenement, the house, and it would have been unreasonable to expect the dominant owner to keep the house in good repaid

Question 11

What was the purpose of counter servitudes?

Answer 11

To provide a partial release from the servitudes

For example, the right to build higher is a counter servitude

Question 12

How could the serviant owner be allowed to build higher?

Answer 12

Being rights servitudes were indivisible- if part of the servitude were ceded to the servient owner in iure then the whole would be lost.

However, by granting the servient owner an ius Altius tollendi over part of his land, the dominant owner could enable to build higher against that part without affecting his own general right

Question 13

How were praedial servitudes protected?

Answer 13

Actio confesiora- lay to the person asserting the existence of his servitude. The plaintiff had to establish a negative claim

Actio negatoria- the dominus of the allegedly servant land denying the existence of a servitude

Question 14

How were servitudes created? How did this change?

Answer 14

Initially, through mancipatio and in iure cessio. Tradition was not possible as it was a res incorporalis

However, many texts suggest that traditio of a piece of land plus tolerance (patientia) of the transferor would be a servitude right which gave rise to praetorian protection of the transferee

With the obsolesce of mancipatio and in iure cessio pact and stipulation came to acquire general force- could create rights of way over provincial land

By Justinian pact and stipulation was the normal way of creating servitudes, naturally with the abolition of the distinction between italic and other land.

There is also authority to suggest that long exercise gave title to the servitude. This was associated with long term prescription

Question 15

How could praedial servitudes be terminated?

Answer 15

In iure cessio of any servitude or the remancipation of rustic servitudes ended the right

As these conveyances were made obsolete renunciation sufficed

Confusio- the vesting of title of both the dominant and serviant land in one owner

Destruction of either piece of land or a fundamental change in the servant land e.g. if the watercourse dried up

Non-exercise of a servitude- 2 years in classical law and 10-20 years under Justinian

However, in the case of urban servitudes it was necessary that there should have been some conduct by the servient owner, inconsistent with the continued existence of the servitude (e.g. building a wall in front of a window entitled to light) . The difference is to be explained by the fact that the rustic servitudes were positive so that it would be easy to see whether the right was being exercised, whereas urban rights were in general negative.

Question 16

What were the personal servitudes?

Answer 16

Usufructus
Usus
Habitatio
Operae servorum

Question 17

Why did the usufructus develop?

Answer 17

Mainly to provide for a widow in marriage- family settlement. Even making a will a husband could be reluctant to give his property to his wife as she might remarry. Ideal for her to receive life interest while the capital of the estate remained with the husband’s successors.

Legacy was the most common mode of creating a usufruct

Question 18

What is the definition of an usufruct?

Answer 18

The right to use, enjoy and abuse the property without impairing it.
The usufructuary’s connection with the thing was rather tenuous and obscure- he did not have possession of the thing and could only acquire the fruits through perceptio

Question 19

Why could there be no usufruct of money or perishables?

Answer 19

It needed to be returned.

Question 20

What does it mean for the right to be inalienable?

Answer 20

As usufruct was a personal right- usufruct was inalienable by the beneficiary. He could sell or let out the actual exercise of that to which he was entitled but not the right itself. If he purported to alienate the usufruct to the owner of the thing, the right was extinguished by merger

Question 21

What is the relationship between a dominus and a fructuary?

Answer 21

The existence of usufruct does not detract from the title of dominus. This is reflected in the relationship between the dominus and fructuary
o The dominus retained his full rights to sell the res and he retained possession of it
o The fructuary had to return the thing at the end of the usufruct and it could, if necessary, be vindicated from him and, if he destroyed or damaged the thing, he would be liable to the dominus under the lex aquilia
o However, within limits the fructuary had a real right which he could assert if necessary, against the dominus by an actio confessoria.
o Moreover, although the usufruct had detention of the thing, he was given the protection of the interdicts.
o He was also given the actio furti in respect of his interest if the thing was stolen and also an actio utilis under the lex aquilia if the thing was destroyed or damaged

Question 22

What is usus?

Answer 22

The right to use the thing without having its fruit

Question 23

Acquisition and extinction of usufruct and usus

Answer 23

Legacy was the most common source of these rights. However, they could also come into existence in iure cession, deductio in a mancipatio or adiudicatio in a divisory action.

Usufruct and usus would end with the expiry of the term for which they were granted or with the death of the holder

Usufruct and usus would end with the expiry of the term for which they were granted or with the death of the holder

These rights also ended by consolidatio (the vesting of the right and dominium over the thing in the same person or by cessio in iure to the dominus. Under Justinian simple renunciation sufficed

Non use in the periods of usucapio in classical law ended the rights. It had to be the complete non-use of the thing as a whole and not merely part of it

If a fructuary let out or sold the actual exercise of his right, it could not be lost through non-use

Finally, a fundamental change in the res or its destruction ended the right. To pull down a house in which a usufruct existed, destroyed the usufruct.

Question 24

What is habitatio?

Answer 24

Habitatio was a right to the occupation of a house for life

Question 25

What was operae servorum?

Answer 25

This was a right to the services of slaves and animals

Question 26

What were the other rights less than ownership?

Answer 26

Emphyteuta

Superficies

Question 27

What was emphyteusis?

Answer 27

• Emphyteusis was a grant of land on a long lease or in perpetuity upon payment of a groundrent under a penality of forfeiture in default of payment. • It had its origins in the grants of land belonging to the state, made for long periods against the payment of a rent.

However, as long as the rent was paid, the holder had many of the practical advantages of ownership- time of Hadrian it was accepted that he could transfer his holdings by traditio and he was handed the interdicts to assert his title

Question 28

How can an emphyteusis be created?

Answer 28

• Emphyteusis could be created by contract or by will and gave the holder (emphyteuta) the right to freely dispose of the land so long as the groundrent was paid and the land remained capable of being returned unimpaired when the grant ended

He could also dispose of it by will, create servitudes, acquire fruits by separatio and use the vindicatio utilis to assert his rights. However, the dominus remained owner
The rigjht ended by the death of the holder without heirs, destruction of the land or forfeiture (if he allowed the land to fall into a bad state of cultivation)

Question 29

What was superficies?

Answer 29

It became accepted that one person be granted a right over the surface of land belonging to another- this was superficies, a right which originated in the grant of building leases by the state and cities

Question 30

What was the responsibility of the landlord and the tenant in a lease?

Answer 30

The owner might let out his property for occupation by tenants. A lease in Roman law is a contract so it granted rights in personam

The principal obligation of the landlord is to give the tenant vacant possession of the premises leased- failure to do this was a breach of contract and could make the landlord liable to damages, and on the part of the tenant was to pay the rent

Question 31

What were the rules for the abatement (removal) of rent?

Answer 31

Rules for the abatement of rent, particularly in the case of rural property where crop failed. It seems to become settled that where overwhelming force (e.g. earthquake, flooding, enemy attack). Here, the tenant did not have to pay full rent, the rent due to him was abated pro rata. However, if the tenant’s argument was that he harvested a poor crop there was no redress- should have been aware when he entered the contract

Question 32

The lack of the security of tenure of the tenant

Answer 32

Only had rights in personam- could be evicted by the dominus

Tenant’s position insecure- if property was sold by landlord the tenant had no claims to the property, no rights against the new owner and could be ejected. Although the landlord would have to pay for breach of contract

Question 33

How did the position of the lessee improve in the later classical period?

Answer 33

Later classical law the tenant does have a right to leased property as well as to protection by interdict and proprietary action. He therefore has security of tenure- developed first by leases on Roman state