These slides describe the effect of Servitudes on immovable property and what are positive and negative Servitudes. This is from a lecture in Conveyancing conducted for the final year students of the Sri Lanka Law College in 2007

1. Servitudes
Effect of Servitudes on
conveyances of immovable
properties
Ajithaa Edirimane, LLB MLB
Attorney-at-Law & Notary Public
COPYRIGHT Ajithaa Edirimane - No part of this slide
presentation shall be copied or extracted or used in
anyway without the publisher’s permission -
ajithaa2001@yahoo.com

2. Types of Servitudes
 The following land servitudes upon land may be attached to
land as “appurtenances”, :
 The right of way;
 The right of taking water, wood, minerals, and
other things;
 The right of receiving air, light, or heat from or
over land;
 The right of receiving water from or discharging
the same upon land;

3.  The right of having water flow without
diminution ordisturbance of any kind;
 The right of using a wall as a party wall;
 The right of receiving natural support from
adjacent land or things affixed thereto;

4. Dominant tenement
Servient tenement
 Dominant tenement - The land to which an
easement is attached is called the dominant
tenement;
 Servient tenement- the land upon which a
burden or servitude is laid is called the
servient tenement.

5. Positive Servitudes
Negative Servitudes
 Positive Servitudes – permits the
Dominant tenement to use the servient
tenement in a particular way.
i.e. walking across the land, drawing
water from a well
 Negative Servitudes – it is the duty of the
owner of the land to forbear / or not use it
in a particular way.
i.e. not to obstruct light

6. Impact of Servitudes on
immovable property
 Servitudes or limited real rights are
aspects of immovable property that can
have a huge impact on an owner's use of
the property.

7.  And servitudes or limited real rights stay
binding on a land, even if the owner did
not know about the servitudes at the time
of buying the property.

8. Implications of Servitudes
 Search for Servitudes
 How to search for Servitudes

9. Buying a Property with Servitudes
 When a property is sold,
the limited real rights or servitudes
registered against the title deed stays
valid.
 The property is always sold "subject to"
the limited real rights or servitudes,
whether the buyer was aware of those
servitudes or limited real rights, or not.

10. Servitudes and Property Value
 The fact that another person has a
registered limited real right or servitude
over a property limits the owner's use of
the immovable property and will
negatively affect the value of the property.
 Servitude is an encumbrance on the
servient tenement

11.  On the other hand, if the owner of a
property has a registered limited real right
or servitude over another property, it will
positively affect the value of his/her
property.
 Dominant owner should impose a
minimum burden on the servient owner –
Rule of Roman Dutch Law

12. Usufruct
 A Usufruct is a type of Servitude
 A usufruct grants a person (who is not the owner of the
property) the right to occupy the property, and enjoy
the fruits thereof. This means that the usufruct holder is
entitled to the rental income from a property, should they
not choose to occupy the property.
 Fernando vs Perera (1914) 18 NLR 150 – Allotments of
land bequeathed to the youngest daughter Isabella to
possess and occupy the said 3 lands during her lifetime.
 A Usufruct can be acquired by Deed, Will and Prescription

13. Creation of Servitudes
 An Servitude created through Prescription will be
recognized in these instances:
 (1) the servitude is adverse or contrary to the
interests, and absent of the permission, of the
landowner;
 (2) it is continuous and uninterrupted; and
 (3) it exists for over a period of 10 years.
A creates and openly uses a right of way across B's land
without B's permission. A Servitude is created by
prescription.

14. Termination of Servitudes
 (1) the same individual becoming the
owner of the dominant as well as the
servient tenement where an appurtenant
Servitude existed; Perera vs
Samarakoon (1922) 23 NLR 502
 (2) Amicable settlement
 (3) Releasing the Servitude by Deed
 (4) the abandonment of a Servitude.

15. case
 Thamboo vs Annammah (1934) 36 NLR
330
 One Co-owner cannot create a
servitude without the consent of the
other co-owners

16. case
 Fernando vs Fernando (1929) 31 NLR 107
 Servitude has to be claimed against the
adjoining tenement. If not it should be
proved that the intervening tenements are
subject to the same servitude.

17. Case
 Cornelis vs Fernando (1962) 34 NLR 113
 If permission had been granted by the
owner of a block of land by giving
permission, a Right of Way cannot be
claimed by Prescription.

18. case
 Selladurai vs Chelliah (1951) 46 CLW 12
 The Deed of Transfer of the dominant
tenement carried the provision ‘with the
appurtenances’ indicating that it conveys
servitudes.
 But even if such words were not used a
real Servitude attached to a property will
pass.

19. case
 Wijesekera vs Vaithianathan
 The Court held that the Right of Way was
gifted personally and did not become an
accessory of the property mortgaged.

20. case
 Corwell vs Casiechetty (1910) 14 NLR 340
 Discharging waste water from a bathing
well to the lower tenement