There are two types of servitudes: affirmative servitudes and negative servitudes.
- Affirmative servitudes give the dominant tenement (the property with the right) the right to do something on the servient tenement (the property with the burden). For example, an affirmative servitude might give the owner of a house the right to use a neighbor’s driveway to access their property.
- Negative servitudes prevent the servient tenement from doing something. For example, a negative servitude might prevent a neighbor from building a fence that blocks the view from the owner’s house.
Servitudes can be created by a variety of means, including:
- Express grant: A servitude can be created by express grant in a deed or other written document.
- Implied grant: A servitude can be implied from the circumstances, such as when one property is used for the benefit of another.
- Prescription: A servitude can be acquired by prescription, which means that it has been used for a certain period of time without objection.
Servitudes can be terminated in a number of ways, including:
- Merger: A servitude terminates if the dominant and servient tenements are owned by the same person.
- Forfeiture: A servitude can be forfeited if the dominant tenement violates the terms of the servitude.
- Extinction: A servitude can be extinguished by a court order.
The laws governing servitudes in California are set forth in the California Civil Code. The Civil Code provides for both affirmative and negative servitudes, and it outlines the ways in which servitudes can be created, terminated, and enforced.
Here are some additional things to know about property servitudes in California:
- Servitudes are not automatically recorded: Unlike a deed or mortgage, a servitude does not have to be recorded in order to be valid. However, it is a good idea to record a servitude, as this will make it easier to prove its existence if there is ever a dispute.
- Servitudes can be difficult to enforce: If a servient tenement violates the terms of a servitude, the dominant tenement may be able to file a lawsuit to enforce the servitude. However, enforcing a servitude can be difficult, and it may not be possible to obtain the desired outcome.
- Servitudes can be expensive to remove: If you want to remove a servitude from your property, you may have to file a lawsuit and go to court. This can be a time-consuming and expensive process.
If you are considering buying or selling property with a servitude, it is important to consult with an attorney to understand the implications of the servitude. An attorney can help you to assess the value of the property with the servitude, and they can also help you to negotiate the terms of the sale or purchase.