LU2b — Limited Real Rights & Servitudes
← 02a - LU2 Acquisition of Ownership | 00 - Index | Next → 02c - LU2 Constitutional Developments
Overview
A limited real right (ius in re aliena — "a right in the thing of another") is a real right that a person holds in property whose ownership vests in another person.
- - Ownership = unlimited in principle (subject to law and others' rights)
- - Limited real rights = only one or two of the three ownership entitlements (utendi, fruendi, abutendi)
- - Protected by real actions → enforceable against all third parties
Two categories
| Category | Examples |
|---|---|
| Real rights of enjoyment | Servitudes — personal and praedial |
| Real rights of security | Hypothec (pledge over immovable property) |
Servitudes
A servitude = a real right exercised over a thing belonging to another person.
The holder of the servitude can protect it with real actions — not only against the owner, but against all other persons.
Two types of servitudes
| Type | Personal servitude | Praedial / real servitude |
|---|---|---|
| Attached to | A specific person | Land (the dominant tenement) |
| Terminates | On the holder's death (or at end of agreed period) | When the tenement relationship ends |
| Transferable? | No — cannot be inherited or transferred | Runs with the land |
| Applies to | Movable or immovable things | Immovable property |
| Example | Usufruct, usus, habitatio | Right of way (servitus viae) |
⚠️ Just because it's called a "personal" servitude does NOT mean it creates a personal right — it still creates a real right (a right over a thing). The "personal" refers to the fact that it belongs to a specific individual.
Personal Servitudes in Detail
General rules
- - Automatically ceases on the death of the holder
- - Can be extinguished early if granted for a specific period only
- - The holder cannot transfer the real right to another person
- - The holder cannot bequeath the servitude (it cannot be inherited)
- - The holder can allow a third party to exercise the entitlements — but that third party only gets a personal right against the holder of the servitude, NOT a real right
Three types of personal servitudes
| Servitude | Latin | What it grants |
|---|---|---|
| Usufruct | Usus fructus | Right to use AND enjoy the fruits of another's thing |
| Use | Usus | Right to use another's thing (but NOT the fruits, except for personal needs) |
| Habitation | Habitatio | Right to live in another's house |
Hypothec (Hypotheca)
A real right of security over immovable property. The creditor does not take possession of the property — it remains with the debtor. If the debt is not repaid, the creditor can have the property sold to recover the debt.
Modern equivalent: the mortgage bond over immovable property in South African law.
Linked Notes
- - 02 - LU2 Law of Property — ownership, real rights vs personal rights
- - 02a - LU2 Acquisition of Ownership — nemo plus iuris, traditio
- - 02c - LU2 Constitutional Developments — constitutional limits on property rights