The servitude: a real impact on your rights and obligations as an owner

 

Servitudes are often the source of many questions. They are in effect rights, restrictions or obligations linked to your property. They are often also known as « charges ». Generally, the charges are directly attached to the property and not to its owner. They are created for the benefit, among others, of your or another property, public utilities or person. Most of the time, they are registered in the real estate titles of the property and are maintained notwithstanding its sale.

 

Examples of common servitudes:

  • A passage servitude on the land of a neighbor to access your property;
  • A servitude authorizing an « illegal line of sight » on the neighbor’s property due to a window, deck, etc.;
  • A partial right of use for the passing of electrical wires and their maintenance.

What are the means to set up a servitude?

1
By contract, as in the case of two owners that enter an agreement;
2
By a will to transfer, as an example, a right of use to your relatives;
3
By destination of the owner creating a servitude between different parts of the property;
4
By law, such as the law on public utilities.

Note that no servitude is created by the passage of time, even following the usage over an extended period. To make a servitude official and ensure a real right of use, a notarized servitude is required as well as its posting with the Quebec land registry.

What is the difference between a
real servitude and a personal servitude?

There exist two types of servitudes. The « real servitude » is directly linked to the property. This means that the right of use or the restriction is posted with the Quebec land registry and does not disappear upon the sale of the property. The « personal servitude » grants a right of use to a specific individual. It is generally temporary and vanishes following the sale of the property. It can also be maintained for the lifetime of the beneficiary.

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