Servitude / Easement
Easement · Real Servitude · Predial Servitude · Right of Way
Definition
A servitude (civil law) or easement (common law) is a non-possessory legal right that allows one property owner or entity to use or restrict the use of another's real estate for a specific purpose, such as property access or utility passage.
In detail
Understanding Servitudes and Easements
In real estate law, a servitude (primarily used in civil law systems) or an easement (used in common law systems) represents a legal encumbrance placed on a property (the servient tenement) for the benefit of another property (the dominant tenement) or a specific individual or entity.
Unlike full ownership, a servitude does not transfer physical possession of the land. Instead, it grants a limited right of use or imposes specific restrictions on how the burdened property owner may utilize their land.
Key Types of Servitudes
Servitudes are broadly categorized into two structural frameworks:
- Predial (Appurtenant) Servitudes: Attached directly to the land itself rather than an individual. If either the dominant or servient parcel is sold, the servitude remains attached to the property title and legally binds all future owners. Common examples include rights-of-way, driveway access, and drainage paths.
- Personal Servitudes: Granted directly to a specific person or legal entity, typically expiring upon the beneficiary's death or corporate dissolution. Examples include personal rights of access or specific usufruct arrangements.
Additionally, servitudes are classified by their operational impact:
- Affirmative Servitudes: Permit the dominant rights holder to perform specific actions on the servient land, such as passing through a private road or laying pipe systems.
- Negative Servitudes: Prohibit the servient property owner from exercising certain rights on their own land, such as building above a certain height limit to preserve light or view rights.
Creation, Registration, and Extinction
Under modern real estate law, a valid servitude requires formal creation via a written agreement, judicial decree, or legal mandate, followed by official registration in public land registries.
A servitude can be legally extinguished through several mechanisms:
1. Mutual Agreement: Formal release or surrender executed between dominant and servient title holders.
2. Merger: Consolidation of both dominant and servient properties under single ownership.
3. Expiration or Abandonment: Expiration of a contractually agreed time limit or court-ordered cancellation due to non-use or total loss of underlying necessity.
Georgian context
Under the Civil Code of Georgia (Articles 247–253), servitudes (servituti) are recognized as real property rights encumbering real estate. To be legally binding on third parties and enforceable in court, a servitude must be registered with the National Agency of Public Registry (NAPR). In Georgian property transactions, servitudes frequently involve rights-of-way across neighboring landlocked plots, access rights to infrastructure, or shared utility paths in multi-unit residential developments. Foreign investors conducting due diligence in Georgia must review the official NAPR extract (reestris amonaweri) to verify whether an intended purchase is encumbered by or benefits from a registered servitude.
Real example
An investor acquires a landlocked parcel in the Tbilisi suburban zone to construct a residential dwelling. To establish vehicular access to the public road, the buyer negotiates a predial servitude granting a 3-meter-wide right-of-way over an adjacent plot. The agreement is notarized and registered with the National Agency of Public Registry (NAPR) as a legal encumbrance on the neighboring title. When the neighboring landowner later sells their property, the new owner remains legally required to keep the access corridor clear, because the registered servitude runs with the land.
Common mistakes
- ×Assuming informal or verbal access agreements are legally enforceable without NAPR registration.
- ×Believing that a registered servitude automatically terminates when property ownership changes.
- ×Confusing a personal contractual lease or license with an encumbering property servitude.
- ×Failing to review the official NAPR registry extract for existing servitudes prior to signing a purchase agreement.
Frequently asked questions
What is the primary legal difference between a servitude and an easement?
The primary distinction is terminology based on legal systems. 'Servitude' is used in civil law jurisdictions (such as Continental Europe and Georgia), while 'easement' is the corresponding term used in common law jurisdictions (such as the US and UK). Both refer to non-possessory rights to use or restrict another party's real estate.
Does a servitude remain valid when a property is sold in Georgia?
Yes. Predial servitudes registered with the National Agency of Public Registry (NAPR) automatically run with the land. The rights and encumbrances transfer to successive owners upon property conveyances.
How do I verify if a Georgian property has a registered servitude?
You can verify encumbrances by ordering an official property extract from the National Agency of Public Registry (NAPR). The registry extract lists all registered servitudes, mortgages, liens, and legal restrictions recorded against the property.
Can a landowner in Georgia unilaterally cancel a registered servitude?
No. A property owner cannot unilaterally extinguish a servitude registered on their title. Removal generally requires mutual consent of both property owners, a formal surrender by the dominant rights holder, or a court ruling establishing that the necessity for the servitude no longer exists.
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