Explanation of Article 699
The article mentioned the definition of the right of easement, and from this definition, it is clear that the right of easement is a real right that includes three essential elements:
- The first element is the dominant property, also called the served property, which is the property for whose benefit the right of easement is established. This right is considered an accessory to the property and transfers with it to any party it is transferred to.
- The second element is the servient property, which is the property upon which the right of easement is established, also called the serving property. This property has the right of easement established upon it, limiting its benefit for the advantage of the dominant property. The servient property must be owned by a person other than the one who owns the dominant property; there cannot be an easement between two properties if they are owned by the same person, even if one is designated to serve the other, such as for passage or water flow or irrigation. This remains a use of the right of ownership and not the creation of an easement right.
- The third element is that the servient property provides the dominant property with a benefit that limits the benefit of the first property. Examples of such benefits include passage, flow, or drainage. The benefit does not have to be immediate; it can be future, such as an easement right established on a property during ownership procedures, where the owner of the dominant property agrees with the person who will own the property that they will have a right of passage upon acquiring it. From this definition, it is clear that the right of easement does not apply to movables; the benefit imposed by the right of easement must be imposed on a property and for the benefit of a property. The benefit cannot be imposed on a person or for the benefit of a person; the right of easement, like any other real right, is a direct authority exercised by the holder of this right over the servient property without the mediation of the owner of that property. The owner does not have a personal obligation towards the owner of the dominant property unless it is an act required for the customary use of the easement. If the property owner has a personal obligation towards the owner of the dominant property, it is not by virtue of the right of easement but by a personal obligation; this obligation does not transfer with the property if its ownership is transferred. On the other hand, if the benefit established is for a personal interest of the owner of the dominant property unrelated to the interest of the property, it is not an easement right; for example, if a right is established for the owner to use a warehouse built on their neighbor's land.
Related To
Article 699
An easement is a right in rem that is established for the benefit of a real property owned by a person over a real property owned by another person.