What is servitude in Real Estate law?

Before we begin we thank @micomuniweb for reminding us of the importance of explaining what 'servitude' is in Real Estate law.

When we are dealing with complex concepts the dictionary is always a good ally. It defines 'servitude' with about twenty meanings we will choose two for our explanation: 'subjection (...) that restricts freedom'.  This meaning gives the key to any subsequent definition of the concept and is that all meanings are, to a greater or lesser extent, a reduction of freedom or property right. However, it is the first meaning coming from the Law that interests us: 'right in other people's property that limits the domain in this one and that is constituted in favor of the needs of another property belonging to a different owner, or of the one who is not the owner of the encumbered one. 

Servitude affects the owners of a community. Are you? So this post is for you! In the owners' communities there are two types of goods: privative and common ones. The first ones are only of the individual owners, for example, the mailboxes of physical or juridical persons, and the second ones of all the members of the community, such as the elevators. 

In Capitalism, Private Property is an  individual right. However, this is not absolute, because is not everything 'ours' is at all times completely ours. Thus, 'servitude' in Law implies, in clear words, a temporary and limited loss of ownership of a private good.

Are you lost inside the explanation? With an example is clear: 'sometimes as owners we must leave part of our yard with the aim to carry out improvement works in the owners community'  or the workers dedicated to it pass by 'our' yard. That is to say, we borrow a space temporarily so that an action is made in benefit of the Community of Owners of which we form part. Therefore, although it is true that we renounce part or the totality of a good that belongs to us, it is no less true that we do it in a limited way in time and, no less, the improvement that is made in it can benefit us. 

According to the law, easements must be given when they are necessary to establish services for the community of owners, for example to carry out works or allow the passage of operators, but, as we said, they must not seriously harm the "servant". Are you still not convinced of the differences with an arbitrary obligation? The definitive one with an imposition is that the servitudes are bidirectional, both the community and the owner canuse common zones if it needs it to carry out a work to which it has been authorized by the Community.   

Below we list the legal conditions to allow a servitude:

1. To be necessary: that there is no other way to execute the work in the community of owners.

2. To be as innocuous as possible for the affected owners: it would not be right that the servitude supposed a serious prejudice to who is affected by it. Again the law, despite supposing a 'punishment' for the owner, protects the same from abuses by the Community of Owners. 

3. Seek the 'greater good': as we pointed out throughout the text there exists an evident tension between individual freedom (of the owner) and collective benefit (of the owners' community) sometimes the selfishness of an owner could block a necessary work. For this reason, the Spanish Horizontal Property Law establishes this condition in a categorical way.

4. Explain the conditions of the same: such unequivocal clarity must be reflected when detailing the action to be carried out thanks to the transfer of the private property: legality must rule the entire process, otherwise the action may be null.

Throughout the article our references to legality have been constant. What is the reason for so much insistence? That the subject is extremely controversial we must be aware that even if we do everything according to the law is a doubtful matter, for example, is it certain that the option chosen to make a particular action has been as harmless as possible for those who have been affected by servitude? It is necessary to analyze each situation with legal advice.  In Feliu we have our professionals prepared to advice you.

We end on an optimistic note: conflict can be diminuished and even disappear with the mediation of your Property Manager, legal consultation with lawyers and, of course, empathy.