Servitude as an Instrument for Solving Real Estate Problems

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Abstract

The conventional civil law doctrine regards servitude as a limited property right to use a neighbouring land parcel (servient land) which belongs to the owner of a land parcel (dominant land). The appearance of servitude and its evolution as a legal institute is usually traced back to Roman law. In the ensuing time servitude was accepted by continental legal frameworks and Anglo Saxon law. The Russian civil law of the pre-revolutionary period was not devoid of this category either.Over the course of history servitude has been used as an effective tool for solving a number of real estate problems in urban and rural environment. On the one hand, servitude allows someone to use a dominant real estate more efficiently, on the other hand, servitude restricts servient real estate only to a certain extent and under certain conditions. This is what creates the great economic value of this institute.The pre-revolutionary Russian legislation did not contain clear provisions on an institute corresponding to the Roman notion of iura in re aliena; nor did it use the term “servitude” when relying on provisions on restrictions for public or private participation and on the Russian counterpart of “profit à prendre”. Meanwhile, there are doubts as to whether some of the above mentioned rights should be regarded as easements.Therefore, there was need for an improvement in servitude law. A comprehensive set of regulations of servitudes was put forward in the Draft of the Civil Code of the Russian Empire. In addition,...
Original languageEnglish
Title of host publicationRecht und Wirtschaft in Stadt und Land (Law and Economics in Urban and Rural Environment)
EditorsMarju Luts-Sootak, Frank L. Schäfer
Pages131-149
StatePublished - 2020
Event9th Conference in Legal History in the Baltic Sea Area - Tallinn, Estonia
Duration: 16 May 201820 May 2018

Conference

Conference9th Conference in Legal History in the Baltic Sea Area
Country/TerritoryEstonia
CityTallinn
Period16/05/1820/05/18

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