Explanation of Article 712
The article refers to one of the effects of the easement right, which is the obligation of the owner of the dominant property to bear the expenses of the necessary works for the use of the easement right and its maintenance. The first paragraph clarifies that the expenses for the necessary works for the use of the easement right and its maintenance are originally borne by the owner of the dominant property, as he is the beneficiary of the easement right; therefore, he must pay the expenses of this benefit in accordance with the general principle: "the yield is with the guarantee." The generality of the first paragraph includes situations where there is a defect in the property or the need arises to change the location of the easement, so the owner of the dominant property bears the expenses even if the reason for these expenses is works required due to a defect in the property or a change in its location due to an adjustment in the existing situation of things. The first paragraph also states that it is permissible to agree contrary to this established principle because it is not a matter of public order, and it is permissible to agree in the document that created the easement right that the expenses of the works be on the owner of the servient property. The second paragraph refers to the situation where the owner of the servient property is responsible for the expenses of the necessary works for the use of the easement right and its maintenance, as if the parties agreed that the costs would be borne by the owner of the servient property. The article indicates that the owner of the servient property can relieve himself of this obligation by relinquishing it entirely to the owner of the dominant property if the easement is over the entire property. However, if the easement is for part of the property, such as an easement of passage, the owner of the servient property can suffice by relinquishing that part in favor of the owner of the dominant property to avoid the expenses. The third paragraph explains that if the works are beneficial to both the owners of the dominant and servient properties, the expenses of those works are shared between the two parties in proportion to the benefit each receives. If there is an easement of passage and the owner of the servient property also uses this path for passage and benefits from it, the costs of the works on the path and its maintenance are shared between the owners of the dominant and servient properties in proportion to the benefit each receives.
Related To
Article 712
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The cost of the works necessary for exercising the right of easement and the maintenance thereof shall be borne by the owner of the dominant real property, unless agreed otherwise.
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If the owner of the servient real property is required to carry out said works at his expense, he may be relieved from said requirement by surrendering the servient real property wholly or partially to the owner of the dominant real property.
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If the works are beneficial to the owners of the dominant and servient real properties, the costs of such works shall be borne by both parties, each in proportion to their accrued benefits.