Servitudes and Easements and Rights of Way
Louisiana’s system of civilian law uses different terminology that may be foreign to those accustomed to the common law systems of the other states. Servitudes and easements are very common examples of this different terminology. Their meanings generally overlap, as discussed herein, but the rules as to how they work can be very different.
Ownership of property is not a single right. Rather, it is a bundle of rights consisting of the right to possess it, the right to exclude others from it, the right to exploit it, etc. Because of this fact, the law allows an owner to transfer some of these rights to another. For example, a property owner can grant the right to traverse over his property. This is known as a Servitude of Passage. If the right is granted to a neighboring tract, it is known as a Predial Servitude, and it can be enjoyed by anyone who owns that tract. If the right is granted to a person, it is known as a Personal Servitude and can only be exercised by that person.
Like a servitude, an easement is the right to use property belonging to another, and they fall into two categories. If the right belongs to neighboring property (the predial servitude discussed above), it is known as an Appurtenant Easement and can be enjoyed by whomever owns that property. If the right belongs to a person (the civilian personal servitude), it is known as a Gross Easement. As with servitudes, one of the most common types of easements is the right to cross over a tract of land, which, in common law parlance, is known as a right of way.
As illustrated, servitudes and easements perform the same function with regard to property law. They are very useful rights and, for that reason, are very common under both systems of law. But they are also governed by specific rules and often spawn disputes. Moreover, civilian law and common law have very different rules governing the establishment, interpretation, enforceability, and termination of these rights, so a party should consult with a lawyer when dealing with them.
There are no any similar posts with this post