TITLE VIII JOINT OWNERSHIP, USUFRUCT AND OTHER RIGHTS IN RAM
Chapter 1. Joint ownership
Section 1. General provisions
Art. 1257.- Principle.
(1) A thing may be owned by several persons as joint owners thereof.
(2) Nothing shall affect the rules relating to agricultural communities and official associations of owners laid down in Title IX of this Code. (Art. 1489-1534).
Art. 1258.- Joint ownership how regulated.
(1) Without prejudice to the mandatory provisions of the law, the rights and duties of joint owners shall be subject to the instrument where from joint ownership originates and to the agreements entered into by the joint owners.
(2) Such provisions shall apply where no instrument or agreements as mentioned in sub-art. (1) are made or where such instrument or agreements are defective or contrary to law.
Art. 1259.- Presumption of equality.
The shares held by each joint owner shall be presumed to be equal.
Art. 1260.- Rights on share.
(1) Each joint owner may dispose of or pledge his share.
(2) The creditors of each joint owner may attach his shares.
Art. 1261.- Legal right of pre-emption.
(1) Joint owners shall be legally entitle to compel any third party who acquires a share in the thing jointly owned to sell it to them.
(2) The right mentioned in sub-art, (1) shall be exercised in the manner prescribed by Chapter 4 of this Title (Art. 1386-1409).
Art. 1262.- Surrender of share.
(1) Where a joint owner surrenders his share in a thing jointly owned, such share shall accrue to the other joint owners.
(2) A joint owner who has surrendered his share shall be liable for the debts which he was liable for prior to surrender.
Art. 1263. Use of thing.
Each joint owner may use the thing jointly owned in accordance with the purpose for which it was acquired and with the due regard to the rights of the other joint owners.
Art. 1664.- Increase.
(1) The fruits of a thing jointly owned shall be jointly owned.
(2) Each joint owner may at any time apply for the partition of such fruits.
Art. 1265.- Administration of thing jointly owned.-1. Rule of majority.
(1) A thing jointly owned shall be administered by the joint owners acting together.
(2) Decisions regarding such thing shall be taken by a majority vote of owners representing a majority share.
Art. 1266.- 2. Decisions requiring unanimous consent.
The consent of all the joint owners shall be required where the thing is to be disposed of, mortgaged or the purpose for which the thing was acquired changed.
Art. 1267.- 3. Costs.
The joint owners shall bear in proportion to their share the costs of administration, taxes and pledging or mortgaging the thing jointly owned and all other charges resulting from joint ownership or charging the thing jointly owned.
Art. 1268.- Necessary expenses.
(1) Where a joint owner without authority incurs expenses to avoid loss or damage to the thing jointly owned, the expenses shall be borne by all joint owners.
(2) No refund shall be payable where the expenditure was purposeless or was rendered necessary by the fault of the joint owner or a person responsible to such joint owner.
(3) A joint owner may relieve himself of his duty to share expenses by surrendering his share to the other joint owners.
Art. 1269.- Expenses not necessary.- 1. Principle.
(1) Where a joint owner without authority has incurred in connection with the thing jointly owned expenditure which was not necessary but increases the value, usefulness or appearance of such thing, he shall not be entitled to any refund of expenditure.
(2) He may restore the thing to its previous condition.
Art. 1270.- 2. Increase.
(1) The provisions of Art. 1269 shall not apply to expenditure incurred in the production or collection of fruits or crops.
(2) Where a joint owner without authority has incurred expenditure in the production or collection of fruits or crops, he shall deduct such expenditure before the proceeds from such fruits or crops are divided.
Art. 1271.- Sale by auction of thing jointly owned.
(1) Notwithstanding any provision to the contrary, each joint owner may at any time apply for the thing jointly owned, if a corporeal chattel, to be sold by auction.
(2) Where the time for sale is inappropriate the court may order that the thing shall remain jointly owned for a period not exceeding six months.
Art. 1272.- Division of immovable jointly owned. 1. Principle.
(1) Each joint owner may at any time apply for the thing jointly owned, if immovable, to e divided.
(2) Where divisions is contrary to the nature or purpose of the immovable or would reduce its value considerably or seriously impair the making use of it, the court shall order that the immovable be sold by suction and not divided.
Art. 1273.- 2. Power of the court.
(1) Where the time for division or sale by auction is inappropriate the court may order that the thing shall remain jointly owned for a period not exceeding two years.
(2) Where necessary, it shall appoint a person to administer the thing during the period specified in the order.
Art. 1274.- 3. Agreement prohibiting division.
(1) The right of a joint owner to apply for division may be prohibited by the act creating the joint ownership or by the subsequent unanimous agreement of the joint owners.
(2) Any such agreement shall be effective for not more than five years or for such shorter period as may have been fixed.
(3) An agree met which does not fix any period or fixes a period longer than five years shall be of no effect after five years.
Art. 1275.- Provision for arbitration.
(1) The act creating the joint ownership or an agreement entered into by the joint owners may provide that any dispute arising between joint owners in relation to the thing jointly owned shall be settled by one or more arbitrators.
(2) In such a case, the provisions of Art. 3307-3346 of this Code shall apply.
Art. 1276.- Perpetual joint ownership. -1. When possible.
Joint ownership may be perpetual where this is accordance with the nature or purpose of the thing and the sale or division thereof is impossible or would be unreasonable
Art. 1277.- 2. Special agreement necessary.
(1) Where a thing is in perpetual joint ownership, an agreement shall be made regarding the rights and duties of the joint owners and the administration of the thing.
(2) Failing unanimous agreement between the joint owners the court shall settle the terms of the agreement.
Section 2. Special cases
Paragraph 1. Party wall
Art. 1278. Liberty of owner
No person may compel his neghobour to build or repair a party-wall
Art. 1279. – Rebuilding party-well.
(1) Where a party-wall is destroyed and one of the owners refuses to share in its reconstruction, the other owner may rebuild it.
(2) Any wall thus rebuilt shall be the sole property of the owner who rebuilt it, notwithstanding that it is built partly on the neighbour’s land.
(3) The owner who did not share in the reconstruction of the wall may at any time cause such wall to become party-wall by paying to his neighbour half of the expenses incurred in rebuilding the wall.
Art. 1280.- Rights on party-wall.
A joint owner may not, without the consent of the other joint owner, raise the height of party-wall, lean buildings against, it, open holes therein or do any act implying full ownership.
Paragraph 2. Ownership of stories or suites of a building
Art. 1281.- Parts of buildings deemed to be jointly owned.
(1) Where floors or parts of a building are owned by different persons, such persons shall, in the absence of any evidence to the contrary, be deemed to be joint owners of the land of such pats of the building as are not intended for the exclusive use of one owner only.
(2) The walls separating parts of a building shall be jointly owned by the owners of such parts.
Art. 1282.- Joint ownership agreement.
(1) The rights and duties of each joint owner and the manner in which the immovable jointly owned shall be managed shall be as provided in the joint ownership agreement regarding such immovable.
(2) The agreement shall fix the share of each joint owner in the parts jointly owned of the immovable.
Art. 1283.- Form of agreement.
An agreement regarding joint ownership shall be of no effect unless made in writing.
Art. 1284.- Deposit of agreement.
(1) A copy of the agreement shall be deposited with a notary or court registry at the place where the building is situate.
(2) Any interested party may have access thereto and be supplied with a copy thereof.
Art. 1285.- Drowing up of agreement.
(1) An agreement regarding joint ownership may be drawn up, prior to the building being built, by the prospective joint owners or by the person who undertakes the construction of the building to be jointly owned.
(2) Where the building has been completed, the agreement shall be drawn up by the syndicate of joint owners on the application of any joint owner.
(3) Failing unanimous consent of the joint owners, the terms of the agreement shall be settled by the court.
Art. 1286.- Effect of agreement.
The agreement may be set up against any person who claims to have a right on the building, where such right has been acquired after the agreement has been deposited in accordance with Art. 1284.
Art. 1287.- Agreement not deposited.
(1) The agreement whether deposited or not shall bind the joint owners.
(2) It shall bind the heirs and creditors of such joint owners.
Art. 1288.- Incomplete or unlawful agreement.
The provisions of this Chapter shall apply where the agreement is defective or contrary to law.
Art. 1289.- Parts not jointly owned.- 1. Principle.
(1) Each joint owner shall exercise the rights of a full owner on such parts of the building as are his and are not jointly owned.
(2) He may in particular dispose of, rent or mortgage the part of which he is the full owner.
Art. 1290.- 2. Application.
Each joint owner shall have regard to the nature of the building and shall not exercise his rights to the detriment of the other owners.
Art. 1291.-Parts jointly owned. 1. Use.
Each joint owner may, in exercising his rights on his share, make use of the parts jointly owned of the building in accordance with their purpose but so as not to disturb the rights of the other joint owners.
Art. 1292.- 2. Charges.
(1) Each joint owner shall share in the costs arising from the preservation maintenance or administration of the parts jointly owned.
(2) Such costs shall be apportioned in accordance with the value of the respective shares.
Art. 1293.- Syndicate of joint owners. -1. Purpose.
(1) Joint owners shall constitute a syndicate which shall act as their legal representative.
(2) The syndicate shall, in accordance with the agreement regarding joint ownership, make all decisions relating to the use and administration of the parts jointly owned.
Art. 1294.- 2. Operation.
(1) Each joint owner shall have a number of votes proportionate to the value of his share.
(2) He may be represented at meetings and vote by proxy.
Art. 1295.- 3. Meetings.
(1) The manager of the syndicate shall convene all meetings of the syndicate at the place where the building is situate.
(2) A meeting of the syndicate shall be convened where not less than five joint owners so require.
(3) The manner of convening and time of the meeting shall be fixed by the manager in a reasonable manner.
Art. 1296.- 4. Decisions.
(1) The decisions of the syndicate shall be taken by a majority vote.
(2) They shall be served by the manager on the joint owners who were not present or represented at the meeting.
Art. 1297.- 5. Appeal.
(1) Notwithstanding any provision to the contrary, any joint owner may appeal to the court against any decision, taken by the syndicate, to which he has not agreed and which is contrary to law or the agreement regarding joint ownership.
(2) The right of appeal shall be exercised within one month from the decision having been served on the joint owner concerned.
(3) Any judgment invalidating a decision of the syndicate shall be binding on all joint owners.
Art. 1298.- Manager. 1.- Appointment.
(1) The syndicate shall be managed by a manager who need not be a joint owner.
(2) He shall be appointed by the syndicate.
(3) Where necessary, a manager may be temporarily appointed by the court on the application of a joint owner.
Art. 1299.- 2. Written authority.
(1) The manager may require the syndicate to provide him with a written authority specifying his duties and powers.
(2) Where the manager is appointed for a period of time such period shall be specified in the written authority.
Art. 1300.- 3. Remuneration.
(1) Unless otherwise agreed, the manager shall not be remunerated.
(2) He shall be paid expenditure incurred on behalf of the syndicate.
Art. 1301.- 4. Revocation.
(1) The ayndicate may at any time revoke the appointment of the manager, without prejudice to the right of the manager to claim such remuneration as may have been agreed.
(2) Any agreement to restrict revocation of the appointment of the manager for good cause shall be of no effect in particular where the manager commits a serious breach of duties or is incapable of carrying out his duties in a proper manner.
Art. 1302.- 5. Duties.
(1) The manager shall be responsible for he maintenance, security, cleanliness and repair of the parts jointly owned of the building.
(2) He shall convene the syndicate and shall enforce its decisions.
(3) He shall represent the syndicate and shall act on its behalf in judicial and extra-judicial relations.
Art. 1303.- Liability.
(1) The manager shall be liable to the syndicate in accordance with the provisions relating to agency
(2) Notwithstanding any agreement to the contrary, an appeal shall lie to the court against any decision of the syndicate approving the accounts of the manager or relating to the manager’s liability, where the manager or his representative took part in such decision.
Art. 1304.- Loss of building.
Where a building is a total loss by reason of fire or otherwise, any joint owner may apply for the land and remains of the building to be sold by suction.
Art. 1305. –Partial destruction.-1. Power of syndicate.
Where a building is partially destroyed, the syndicate shall decide whether or not the building shall be rebuilt or repaired.
Art. 1306.- 2. Decision to rebuild.
(1) Where the syndicate decides to rebuild or repair the building, each joint owner shall bear the costs of rebuilding or repair in proportion to his share in the parts jointly owned of the building.
(2) No regard shall be had to the fact that some parts not jointly owned may have been destroyed or damaged and other parts of the same nature have not.
(3) Nothing shall affect cases where the damage caused to the building is attributable to a joint owner or a person for whom a joint owner is responsible.
Art. 1307.- 3. Decision not to rebuild.
(1) Where the syndicate decides not to rebuild or repair the building, Such building, including the parts thereof as are not jointly owned, shall be sold by auction.
(2) The joint owners shall share in the proceeds of the sale in proportion to their share in the parts jointly owned of the building.
(3) The provisions of Art. 1306 (2) and (3) shall apply in such cases.
Art. 1308.- Creditors of syndicate.
Debts incurred following decisions taken by the syndicate shall be secured by the building, including such parts thereof as are not jointly owned, unless the joint owners or manager have personally and expressly under. Taken to pay such debts from other property.
Chapter 2. Usufruct
Section 1. General Provisions
Art. 1309.- Definition.
(1) Usufruct it’s the right of using and enjoying things or rights subject to the duty of preserving their substance.
(2) It may apply to land, chattels, rights or an inheritance.
Art. 1310.- References.
(1) Unless otherwise provided, the rules governing the acquisition, transfer or loss of ownership of corporeal chattels shall apply tot eh acquisition, transfer or loss of an usufruct relating to corporeal chattels.
(2) Unless otherwise provided, the rules governing the acquisition, transfer or extinction of credits and other incorporeal rights shall apply to the acquisition, transfer and extinction of a right of usufruct relating to credits or other incorporeal rights or an inheritance.
Art. 1311.- Rights of the usufructuary.
(1) The usufructuary shall be entitled to the possession, use and enjoyment of the thing.
(2) He shall administer the thing.
Art. 1312. Management.
In the exercise of his rights, the usufrcutuary shall comply with the rules of sound management.
Art. 1313.- Upkeep of the thing.
The usufructuray shall bear the normal costs of upkeep of the thing and management expenses, as well as the payment of interest upon debts charged thereon.
Art. 1314.- ordinary charges.
(1) The usufructuray shall pay, when they are due, annual taxes and other charges on the thing which are normally paid out of the income.
(2) The usufructurary who has paid the land taxes charging an immovable may not claim to have thereby acquired the ownership of or a right on such immovable to the prejudice of the bare owner.
Art. 1315.- Extraordinary charges.
(1) Any extraordinary charge on the thing during the course of the usufruct shall be borne by the owner of the land.
(2) Where the usufructuary does not lend him the necessary sums without interest, the owner may, in order to pay such charge, sell things or rights to which the usufruct extends.
Art. 1316.- Inventory.
The owner and the usufructuary may at any time require that an inventory be made at the joint cost of both parties of the goods to which the usufruct extends.
Art. 1317.- Restoration of thing.
(1) The usufructuary shall restore the thing to the owner upon the termination of the usufruct.
(2) He shall be liable for the loss or deterioration of the thing unless he can show that such loss or deterioration occurred without any fault on his part.
Art. 1318.- Rights in rem.
(1) The usufrcuuary may not charge the thing to which the usufruct extends with any right in rem capable of impairing the rights of the owner.
(2) In particular, he may not give such thing in pledge to the prejudice of the rights of the owner.
(3) Where the usfurcutuary disregards the prohibitions laid down in this Article without the consent of the owner, the latter may terminate the usufruct without compensation.
Art. 1319.- Loss of thing.
(1) The usufruct shall be extinguished by the loss of the thing to which it extends.
(2) The usufruct shall extend to the equivalent value of the thing in case of its expropriation or requisition.
Art. 1320.- Insurance.
(1) The owner and the usufructuary may, where they think fit, insure their respective rights.
(2) Unless otherwise provided, the insurance effected by the owner shall not benefit the usufructuary.
(3) Unless otherwise provided, the insurance effected by the usufructuary shall not benefit the owner.
Art. 1321.- Valuation of the goods.
(1) Unless otherwise agreed, an assessment of the value of the goods to which the usufruct extends made in an inventory or any other instruments shall not transfer the ownership of the goods to the usufrucuary.
(2) The usufructuary shall upon the termination of the usufruct restore the goods themselves to the owner and not the value at which they were assessed.
Art. 1322.- Extinction of usufruct.
(1) The usufruct shall terminate upon the death of the usufructuary or where the period of time for which it was created expires.
(2) The usufruct of bodies corporate or property with a specific destination shall terminate after thirty years or such shorter period as may have been fixed.
Art. 1323.- Owner disposing of thing.
(1) Without prejudice to the provisions of Art. 1315, any act whereby the owner disposes of the thing or right to which the usufruct extends shall not affect the rights of the usufructuary.
(2) The usufraucuary shall retain his rights unless he has expressly waived them.
Art. 1324.- Protection of the owner.
(1) An owner who can show that his rights are in jeopardy may required sureties from the usufructuary.
(2) He may at any time require sureties prior to restoration where the usufruct extends to consumable goods.
(3) Where the usufructuary fails on request to produce sureties within a reasonable period of time or where after the owner has objected he continues to make unlawful use of the thing the court shall order the thing to be vested in a usufructuatory.
Section 2. Special rules regarding usufruct of corporeal goods
Art. 1325.- Absence of liability of owner.
(1) The usufructuary shall take the thing in the condition in which the find it.
(2) He may not require the owner to repair it.
Art. 1326.- Use of thing.
(1) The usufructuary of a corporeal chattel may use it for normal purposes having regard to its nature.
(2) He shall not be liable to pay compensation for depreciation caused by ordinary wear and tear.
Art. 1327.- Consumable things.
(1) Where the usufruct relates to things which cannot be sued without being consumed, the usufructuary shall become the owner thereof.
(2) Upon the extinction of the usufruct, he shall pay the value of the things calculated at the time the usufruct was created.
Art. 1328.- Fruits.
(1) The usufructuary shall become the owner of the natural fruits produced by the thing at the time when such fruits are in good faith separated from the thing according to its destination or custom.
(2) Fruits collected in excess of his entitlement shall be returned to the owner.
Art. 1329.- Treasure.
The usufructuary shall have no right on a treasure that might be discovered during the currency of the usufruct.
Art. 1330.- Limits of rights of usufructuary.
(1) The usufructuary may not abuse his rights.
(2) He may not substantially alter the thing to which the usufruct extends nor change its purpose.
(3) The owner may satisfy himself in a reasonable manner that the usufructuary complies with his duties under this Article.
Art. 1331.- Leasing of the thing.
(1) The usufructuary may lease the thing to which the usufruct extends.
(2) He shall become the owner from day to day of the rents produced by the thing.
Art. 1332.- Termination of lease.
(1) The leasing of the thing shall terminate when the usufruct it self terminates.
(2) Leases made in respect of a land or building between the usufructuary and a farmer or tenant shall bind the owner and third parties for a period of three years from the termination of the usufruct.
(3) Where the usufruct terminates, the owner may forthwith terminate any such lease where he can show that it was made in abnormal conditions and in fraud of his rights.
Art. 1333. Working plan.- 1. When necessary.
The owner or usufructuary may require that a working plan be prepared in respect of the thing where the usufruct extends.
Art. 1334.- 2. How prepared.
(1) The working plan shall be prepared by agreement between the parties.
(2) Failing agreement, it shall be prepared by one or more experts appointed by the court and shall be approved by the court.
Art. 1335.- 3. Alternation.
The working plan may be altered on the request of either party where exceptional circumstances prevent its being carried into effect or it appears for economic reasons desirable that it be altered.
Art. 1336.- Improvements.
(1) Unless otherwise agreed, the usufructuary shall be entitled to no compensation for any improvement he may have made on the thing.
(2) He shall be entitled to no compensation for any building he may have made on the land given in usufruct.
(3) He may, upon the termination of the usufruct, take such building down and restore the land to its previous condition.
Art. 1337.- Considerable repairs. -1. Definition.
Considerable repairs are repairs which entail an expenses exceeding the average yearly income derived from the thing to which the usufruct extends.
Art. 1338.- 2. Duties of usufructuary.
(1) The usufructuary shall inform the owner where considerable repairs need be made for the preservation of the thing.
(2) He shall not himself make such repairs unless he rendered them necessary in particularly by failing to maintain the thing since the usufruct originated.
Art. 1339.- 3. Making of considerable repairs.
(1) The owner shall not be bound to make considerable repairs on the thing.
(2) Where the owner decides to make considerable repairs, the usufructuary shall accept the inconvenience arising therefrom.
(3) In making the repairs, the owner shall have regard to the interests and convenience of the usufructuary.
Art. 1340.- Debts under a mortgage.
(1) The usufructuary shall not be liable for the debts under a mortgage charging the thing to which the usufruct extends.
(2) Where he has been compelled to pay them, he may require the owner to reimburse him.
Art. 1341.- Action of usufructuary.
(1) The usufructuary may claim the thing to which the usufruct extends.
(2) He may bring all actions relating to the possession of such thing.
Art. 1342.- Duty to inform owner.
(1) The usuferucuary shall report to the owner any person who, during the currency of the usufruct, commits acts of usurpation or otherwise interferes with the rights of the owner.
(2) Where he fails so to inform the owner, he shall be liable for any damage as thought he had himself caused the damage.
Art. 1343.- Loss of thing.
Neither the owner nor the usufructuary shall be bound to rebuild what has collapsed as a result of decay or has been destroyed by accident.
Art. 1344.- Partial loss.
Where part of the thing to which the usufruct extends is lost, the usufructuary shall retain his rights on what remains.
Art. 1345.- Usufruct of flock.
(1) Where the flock to which the usufruct extends is a loss by reason of accident or disease without the usufructuary being at fault, the usufructuary shall return the hides to the owner or refund their value,
(2) Where the flock is not a total loss, the usufructuary shall replace the animals lost out of the increase from breeding.
Art. 1346.- Limitation.
(1) Any claim arising from changes made in or damage occasioned to the thing shall be barred where the owner does not bring it within one year from the thing having been returned to him.
(2) The right of the usufructuary to remove any installation made by him shall be barred after the same period of time.
Section 3. Special rules regarding usufruct of credits and incorporeal rights
Art. 1347.- Income.
The usufructuary of a credit or an incorporeal thing shall acquire the interests, arrears due and dividends on the day on which they mature.
Art. 1348.- Subscription for new shares.
(1) The usufructuary shall not acquire the ownership of exceptional profits which may derive from the right to which the usufruct extends.
(2) His right of usufruct shall extends to such profits.
Art. 1349.- Subscription for new shares.
(1) Where a preferential right of subscription is granted in respect of a share to which to the usufruct extends, the right to subscribe for the new shares shall belong to the owner of the share.
(2) The usufructuary’s right shall extend to the new shares subscribed for by the owner or to the proceeds of the sale of the subscription rights,
Art. 1350.- Capital constituted by credit or right.
(1) Where the credit or right to which the usufruct extends is satisfied or discharged during the usufruct the principal shall not be paid to the usufructuary unless the owner has agreed thereto.
(2) Where the owner does not authorize the payment of the sum to the usufructuary, the debt shall be validly discharged where the debtor deposits the sum.
(3) The owner or usufructuary may demand that such deposit be made where the credit has matured.
Art. 1351.- Usufruct of an annuity.
The usufruct of an annuity shall enable the usufructuary during the term of the usufruct to collect arrears without being liable for compensation.
Art .1352. Issue of distinct title deeds.
(1) The owner or the usufrucuary may require from the creditor or the establishment which issued the securities to which the usufruct extends that two separate title deeds be delivered to them at their cost evidencing their respective rights as owner and usufructuary.
(2) The provisions of sub-art. (1) shall not apply to bank notes.
Section 4. Right of occupation of premises.
Art. 1353. Definition.
The right of occupation of premises is the right to live in a house or to occupy a part thereof.
Art. 1354.- Beneficiary of right.
Unless otherwise provided, whosoever benefits by a right of occupation of premises may live in the house concerned with his spouse, his direct ascendants or descendants and his servants.
Art. 1355.- Right extending to part of a house.
Where the right extends to part of a house, the beneficiary of such right may use all installations intended for common use.
Art. 1356.- Expenses of maintenance.
(1) The beneficiary shall bear the costs arising from ordinary maintenance repairs of a house or flat intended to be used by him only.
(2) Where the right of occupation is exercised concurrently with the right of the owner, the latter shall bear such costs.
Art. 1357.- Right not transmissible.
The right of occupation of premises is inalienable and shall not pass to the heirs of the beneficiary.
Art. 1358.- Other provisions applicable.
The provisions regarding usufruct shall apply in addition to those of this Section.
Chapter 3. Servitudes
Art. 1359.- Definition.
(1) A servitude is a charge encumbering a land, hereinafter called the servient tenement, for the benefit of another land, hereinafter called the dominate tenement.
(2) A servitude imposes on the owner of the servient tenement the obligation to submit to the commission of some acts by the owner of the dominant tenement or to refrain from exercising some rights inherent in ownership.
Art. 1360.- Obligation to do.
A servitude may only accessorily cast upon the servient owner the burden to commit any act.
Art. 1361.- Change of owner.
(1) A servitude shall run with the land notwithstanding that the servient or dominant owner changes.
(2) Servitudes which have been registered in accordance with law shall follow the land into whatever hands it may pass.
Art. 1362.- Creation of servitude. 1.- Contract or will.
(1) A servitude may be created by agreement between the dominant and servient owner.
(2) It may be created by a will in which the owner of a land divides such land between two or more persons.
Art. 1363.- 2. Creation evidenced by writing.
The creation of a servitude shall be of no effect unless it is evidenced by writing.
Art. 1364. 3. Effect on third parties.
A servitude shall be of no effect on third parties unless it has been entered in the register of immovables at the place where the servient tenement is situate.
Art. 1365.- Interpretation of doubtful clauses.
Where it is doubtful whether a provision in an instrument creates a servitude running with the land or imposes a personal obligation on the owner of such land. Such equivocal provision shall be deemed to impose a personal obligation and not to create a servitude.
Art. 1366.- Acquisition of servitude by prescription-1. Apparent servitude.
(1) An apparent servitude may be acquired by enjoyment for ten years.
(2) A servitude is apparent where its existence is evidenced by some apparent sign.
Art. 1367.- 2. Non-apparent servitude.
A servitude which is not apparent may not be acquired by prescription.
Art. 1368.- 3. Effect on third parties.
(1) Whosoever has acquired an apparent servitude by prescription may require that the existence of the servitude be evidenced by an instrument specifying the extent of the servitude and that such servitude be entered in the register of immovables.
(2) A servitude acquired by prescription shall not affect third parties unless it has been entered in the register of immovables.
Art. 1369.- License.
(1) AA license to use a land in a particular manner shall not be deemed to be a servitude for the benefit of the person to whom such licenses was given.
(2) The person who has given such license may revoke it at nay time.
Art. 1370.- Extent of servitude.
(1) The rights and obligations created by a servitude shall be as specified in the entry of such servitude in the register of immovables.
(2) Within the limits specified in sub-art, (1), the extent of a servitude may be ascertained having regard to the manner in which the servitude was created or peacefully enjoyed in good faith for a long period of time.
(3) In cases of doubt, the rights and obligations created by a servitude shall e governed by the provisions of the following Articles.
Art. 1371.- Rights of way and rural servitudes.
(1) Rights of way such as the right to traverse a parcel of land on foot, with animals, during the dead season, across fields or out of a wood shall be of such extent as is recognized by local custom.
(2) Rights of pasture, wood-cutting, watering animals, irrigation and other rural servitudes shall have the same extent.
Art. 1372.- Means necessary for the enjoyment of servitude.
(1) he existence of a servitude shall entail the existence of the means necessary for the enjoyment of such servitude.
(2) Whosoever benefits by a right to draw water from a well shall enjoy a right of way to such well.
Art. 1373.- Necessary works. 1. Principle.
(1) The dominant owner may take nay steps and construct any works necessary for the enjoyment and preservation of the servitude.
(2) Unless otherwise provided in the instrument creating the servitude, such works shall be constructed at the expense of the dominant owner.
Art. 1374.- 2. Surrender of servient tenement.
Where works as defined in Art. 1373 are under the instrument creating the servitude to be done at the expense of the servient owner, the latter may relieve himself of such obligation by surrendering to the dominant owner the whole servient tenement or such part thereof as is necessary for the enjoyment of the servitude.
Art. 1375.- Duties of dominant owner.
(1) The dominant owner shall exercise his rights so as to cause minimum inconvenience to the servient owner.
(2) He shall exercise his rights in accordance with the instrument creating the servitude and may not make o the dominant of servient tenement any alteration which would increase the burden of the servitude.
Art. 1376.- New needs of dominant tenement.
New needs occurring for the dominant tenement shall not increase the burden of the servitude.
Art. 1377.- Division of dominant tenement.
(1) Where the dominant tenement is divided, the servitude shall be maintained for the benefit of the owner of each new parcel but the burden of the servitude may not be increased in consequence thereof.
(2) For instance, all the dominant owners who benefit by a right of way shall traverse the servient tenement at the same place.
(3) Where the servitude benefits one parcel only, the servient owner may require that the corresponding entry be struck off the register of immovable as regards the other parcels.
Art. 1378.- Division of servient tenement.
(1) Where the servient tenement is divided, the servitude shall remain annexed to each new parcel of land.
(2) Where the servitude can materially not be exercised on a parcel, the owner thereof may require that it be struck off the register of immovabels as regards his parcel of land.
Art. 1379.- Duties of servient owner.
The servient owner may do nothing to reduce or impair the use of the servient tenement.
Art. 1380.- Changing extent of servitude.
Where a servitude is exercised on a part only of the servient tenement the servient owner may, in appropriate case and provided be pays all the expenses thereby occasioned, require that the servitude be exercised on such other part of the servient tenement as will be equally convenient to the dominant owner.
Art. 1381.- Extinguishment of servitude.
(1) A servitude entered in the register of immovables shall be extinguished where the entry is cancelled.
(2) An application for the cancellation of the entry may be made where the dominant owner has expressly released the servitude and such release is evidenced by writing.
(3) Such an application may also be made in respect of an apparent servitude where the apparent signs which evidenced its existence have disappeared or it has not been exercised for ten years.
Art. 1382.- Partial extinguishments.
A servitude may be extinguished by prescription in the same manner as it was created.
Art. 1383.- Redeeming servitude. -1. When possible.
A servitude may be redeemed where:
(a) it is contrary to the interests of the national economy or some other public interest; or
(b) the benefits it entails for the dominant tenement are out of proportion with the inconvenience or damage it occasions to the servient tenement.
Art. 1384.- 2. How done.
(1) Failing agreement between the parties, the redeeming of a servitude shall be ordered by the court on the application of the servient owner.
(2) the court shall fix the amount of compensation (if any) due.
(3) In fixing such amount, the court shall have regard to all the circumstances of the case, in particular the date on which the servitude was created and the change which the servitude occasions to the value of the dominant and servient tenements.
Art. 1385.- Provision excluding redemption.
The parties may, in the instrument creating a servitude or in a subsequent instrument, exclude for a period not exceeding ten years the right to apply to the court for the redemption of such servitude.
Chapter 4. Right of recovery
Art. 1386.- Definition.
The right of recovery is the right of a person to recover against payment a particular thing given to a third party in ownership or usufruct.
Art. 1387.- No right arising from usage.
No right of recovery shall arise from mere usage even though immemorial.
Art. 1388.- Right of recovery of joint owners.
(1) The joint owners shall have a legal right of recovery where a share in the thing jointly owned is disposed of.
(2) The joint owners shall exercise their right of recovery concurrently, in proportion to their share in the thing jointly owned.
(3) Where one or more of them waive their right of recovery, such right may be fully exercised by the other joint owners.
Art. 1389.- Right of recovery of parents. – 1. Principle.
The relatives by consanguinity of a person who alienates as land shall have a legal right of recovery.
Art. 1390.- 2. Origin of land.
(1) A person may not exercise his right of recovery unless he was a relative in the paternal line of the person from whose succession he who alienates the land received it, where such land comes form the paternal line.
(2) A person may not exercise his right of recovery unless he was a relative in the maternal line of the person from whose succession he who alienates the land received it, where such land comes from the maternal line.
Art. 1391.- 3. Order to be followed.
The right of recovery of the parents shall be exercised in the order in which such persons are called to an in testate succession (Art. 842-851).
Art. 1392.- 4. Priority given to certain persons.
Within the limits laid down in Art. 1390 and 1391, the right of recovery shall be exercised first by those relatives of the person alienating the land who live on such land or participate by their personal work in its exploitation.
Art. 1393.- More than one beneficiary.
(1) Where several persons of the same order may exercise a right of recovery, such persons shall exercise their right together and shall jointly own the land in which they shall have equal shares.
(2) The share of those who have failed to exercise their right shall accrue to the other.
Art. 1394.- Classification of rights of recovery.
The rights of recovery provided by law shall be exercised in the following order:
(a) by the joint owners:
(b) by the parents.
Art. 1395.- Right of recovery may not be exercised against certain persons.
A person may not exercise his right of recovery against another person who benefits by a right of recovery, even though inferior in order under Art. 1394.-
Art. 1396.- Right of recovery may not be exercised in certain cases.
The parents may not exercise their right of recovery under the preceding Articles where the land alienated is situate in a town-planning are or the immovable alienated consist mainly of a dwelling-house or some other building.
Art. 1397.- Right not transmissible.
(1) All the rights of recovery provided by law shall be personal to him who benefits thereby under the law.
(2) Rights of recovery are inalienable.
(3) They may not be exercised by the creditors of the beneficiary.
Art. 1398.- Cases where right of recovery may be exercised
The beneficiary of a right of recovery may be exercised.
(1) the owner or usufructuary of a thing alienates his ownership or usufruct for consideration; or
(2) the thing is seized at the request of a creditor of the owner.
Art. 1399.- Expropriation.
The beneficiary of a right of recovery may not exercise it where the immovable is expropriated by the public authorities.
Art. 1400.- Time for exercising right. -1. Notice of transfer.
Whosoever intends to exercise his right of recovery shall, under pain of losing his right, declare his intention within two months from having been informed that the ownership or usufruct of the thing has been transferred to a new owner or usufructuary.
Art. 1401.- 2. Failure to give notice.
(1) Where the beneficiary, if a joint owner, has not been informed of the transfer, he shall declare his intention to exercise his right within one month form the day when he knew of the transfer.
(2) The parents shall in the same circumstances declare their intention within six months from the day when the new owner or usufructuary took possession of the immovable.
Art. 1402.- Declaration to whom made.
Whosoever intends to exercise his right of recovery shall give notice to the new owner or usufructuary thereof within the periods of time lad down in Art. 1400 and 1401,
Art. 1403.- Duty to produce securities.
Any declaration by the beneficiary that he intends to exercise his right shall be of no effect unless it be accompanied by securities which are sufficient in the opinion of the court to guarantee payment of the price.
Art. 1404.- Effect of declaration.
(1) Where the beneficiary of a right of recovery had declared his intention to exercise his right, such declaration shall only affect the beneficiary.
(2) Any such declaration made by a relative of the former owner acting in such capacity shall affect all the relatives of the same order who may decide to associate themselves with such declaration.
(3) A decision under sub-art. (2) shall be of no effect unless it is made within six months form the declaration and accompanied by sufficient securities to guarantee that the person having made the declaration shall pay the price.
Art. 1405.- Effect of recovery.
(1) Where the beneficiary of a right of recovery has declared in the manner provided by the preceding Articles his intention to exercises his right, the owner shall transfer his rights on the immovable to such beneficiary.
(2) He shall do so as soon as the payments due to him have been made.
Art. 1406.- Rights of owner.- 1. Payment of price.
(1) The owner shall be refunded with the price he paid for the thing.
(2) He may not prove that the price shown in the contract is less than what he actually paid.
(3) The beneficiary may prove by all means that the price shown in the contract is higher than the price actually paid.
Art. 1407.- 2. Value of immovable.
(1) Where an immovable has been acquired gratuitously, the owner thereof shall be entitled to an amount of compensation equal to the value of the rights of which he is deprived.
(2) Failing agreement between the parties, such amount shall be fixed in accordance with the provisions of Art. 1472-1477.
Art. 1408.- 3. Accessories.
(1) The owner shall be refunded with the expenses he made at the time of acquisition and which arise from the making of the transfer deed and transfer charges.
(2) Legal interest on the price and expenses shall run in his favour from the day such price has been paid and expenses made until he is refunded therewith.
(3) The person exercising his right of recovery may relieve himself of the duty to pay interest by surrendering to the former owner the fruits which the immovable produces during one year from the new owner having taken possession thereof.
Art. 1409.- 4. Expenses.
The provisions of the Chapter of this Code relating to “Unlawful enrichment” shall apply as regards the expenses made by the owner on the immovable and the deteriorations occasioned to the immovable when it was in the possession of the owner (Art. 2162-2178).
Chapter 5. Restrictions on the right to dispose of certain things
Section 1. Contractual rights of purchase or pre-emption
Art. 1410.- Definition.
(1) A promise of sale is an agreement whereby the owner of a thing under takes to sell such thing to a specified person, should such person wish to buy it.
(2) A right of pre-emption is a right deriving from an agreement whereby the owner of a thing undertakes to sell such thing in preference to a specified person, should the owner decide to sell it.
Art. 1411.- Scope of this Chapter.
(1) An agreement for a promise of sale or right or pre-emption shall not constitute a restriction on ownership under this Section nor shall it give rise to a right in rem unless it relates to an immovable or a specific chattel.
(2) The rights in obligations which it creates for the parties shall be as provided by Books IV and V of this Code.
(3) The provisions of the following Articles shall only apply to rights in rem created by such agreement.
Art. 1412.- Conditions for validity.
An agreement under this Section shall be of no effect unless it is made an writing and specifies the time within which and price for which the person in whose favour the agreement is made may require its performance.
Art. 1413.- Maximum time limit.
(1) No agreement under this Section shall be effective for more than ten years.
(2) Where the period fixed in the agreement is longer than ten years, it shall be reduced to ten years.
Art. 1414.- Expropriation.
The beneficiary of a right of recovery may not exercise his right with regard to immovable property which is expropriated.
Art. 1415.- Right not transmissible.
(1) Unless otherwise agreed, rights granted by agreements under this Section shall attach solely to the person in whose favour the agreement was made.
(2) Such rights may not be alienated by such person nor shall they pass to his heirs.
(3) The creditors of such person may not exercise his rights in his stead.
Art. 1416.- Promise of sale. 1. Creation of rights in rem.
(1) Whosoever has promised to sell a thing to another may not alienate such thing nor charge it with a right in rem for so long as the promise is effective.
(2) Notwithstanding the provisions of sub-art. (1), the thing may be pledged or mortgaged but for an amount not exceeding the price fixed in the agreement whereby the promise was made.
Art. 1417.- 2. Attachment of thing.
(1) Where the thing to which the promise relates is attached, the owner shall give notice thereof to the person in whose favour the promise was made.
(2) Such person shall loss his right if he fails to exercise it prior to the thing being sold by auction.
Art. 1418.- Right of pre-emption.-1. Creation of rights in rem.
(1) Unless otherwise agreed, whosoever has granted a right of pre-emption on a thing may create rights in rem on such thing.
(2) Where he intends to sell the thing, he shall inform the beneficiary of the right of pre-emption of all the charges existing on such thing.
(3) Where the thing is attached, the owner shall give notice thereof to the beneficiary of the right of pre-emption.
Art. 1419.- 2. Time for exercising right.
(1) Aright of pre-emption shall be exercised within two months from the beneficiary having been informed of the owner’s intention to sell.
(2) The parties may by agreement extend this period to one year.
(3) Where a period exceeding one year has been agreed, it shall be reduced to one year.
Art. 1420.- 3. Failure to exercise right.
(1) The beneficiary shall loss his right where he fails to exercise it within the time laid down in Art. 1419.
(2) The owner may thereupon freely alienate the thing.
(3) He may also retain the ownership thereof.
Art. 1421.- 4. Attachment.
(1) Where the thing to which the right relates is attached, the beneficiary shall lose his right where he fails to exercise it prior to such thing being sold by auction.
(2) Any provisions to the contrary shall be of no effect.
Art. 1422.- Effect on third parties. -1. Conditions.
Agreements under this Section which relate to registered immovables shall not affect third parties unless they have been entered in the register of immovables.
Art. 1423.- 2. Other immovables.
(1) Agreements under this Section which relate to other immovables shall not affect third parties unless they have been registered in the registry of the court of the place where the immovable is situate.
(2) Failing registration, such agreements shall only affect such third parties as knew or should have known them.
Art. 1424.- 3. Movables.
Agreements under this Section which relate to movables shall only affect such third parties as knew or should have known them.
Art. 1425.- 4. Right of beneficiary.
(1) Where an agreement under this Section may be set up against third parties, the beneficiary may require any third party who has acquired the ownership of an immovable in violation of the rights of the beneficiary to surrender such immovable to him on the conditions laid down in the agreement creating the right of pre-emption.
(2) Notwithstanding any agreement to the contrary, the beneficiary shall lose his right where he fails to exercise it within six months from the third party having taken possession of the immovable.
(3) Nothing shall affect the right of such third party to bring an action against the person from whom he acquired the immovable.
Section 2. Provisions prohibiting assignment or attachment of certain things.
Art. 1426.- Provisions relating to corporeal chattel.
(1) Provisions whereby the producer, maker, seller or owner of a corporeal chattel limits its assignment or attachment shall affect such persons only as accept them.
(2) They shall not affect third parties unless they are expressly permitted by law.
Art. 1427.- Immovable.
The owner of an immovable may not except in the cases provided by law stipulate that it may not be assigned or attached.
Art. 1428.- Right of person assigning immovable.
(1) Whosoever assigns an immovable may prohibit the person acquiring it from assigning such immovable or may subject any further assignment to specific conditions.
(2) He may stipulate that the immovable shall not be liable to be attached in the hands of the person who acquires it.
Art. 1429.- Interpretation provisions.
(1) Any prohibitive or restrictive provision as defined in Art. 1428 shall be interpreted in a restrictive manner.
(2) A provisions prohibiting assignment shall thus not be deemed to prohibit attachment.
Art. 1430.- Form of provision.
A provision prohibiting assignment of attachment shall be of no effect unless it is made in writing and specifies the duration of the prohibition.
Art. 1431.- Maximum period.
(1) No restrictive or prohibitive provision shall be effective for more than twenty years or more than the life of the person who acquires the immovable.
(2) A provision made for more than twenty years shall be effective for twenty years only.
(3) The periods mentioned in this Article may not be reckoned from a day later than that when the ownership of the immovable was transferred.
Art. 1432.- Effect on third parties.
A prohibitive or restrictive provision shall not affect third parties unless it has been entered in the register of immovables.
Art. 1433.- Power of the court. -1. Provision prohibiting attachment.
Notwithstanding any provision to the contrary, the court may authorize the attachment of an immovable in respect of which a provision prohibiting attachment was made where:
(a) the creditor applying for attachment requires the payment of alimonies due to the owner of the immovable or to another person to whom other owner is bound by an obligation of maintenance; or
(b) the claim arises from a criminal offence committed by the owner.
Art. 1434.- 2. Provision prohibiting assignment.
(1) The court may authorize the assignment of an immovable in respect of which a provision prohibiting assignment was made, where it is of opinion that the interest of the owner requires that such immovable be assigned.
(2) The parties may by express agreement set aside the power vested in the court.
(3) The court may not grant an authorization under sub-art. (1) where the person who has transferred the ownership of the immovable is alive and capable of expressing his will.
Art. 1435.- Effect of provision prohibiting attachment.- 1. Owner of immovable.
(1) The owner of an immovable in respect of which a provision prohibiting attachment was made may enforce such provision as long as the immovable has not been sold by auction following attachment.
(2) Any anticipated waiving of the right to enforce such provision shall be of no effect.
(3) The owner shall be liable for the costs of attachment where be failed to inform in due time the creditor of the existence of the provision prohibiting attachment.
Art. 1436.- 2. Other persons.
(1) A provisions prohibiting attachment may be enforced by the person who made this provision or by a third party appointed by such person to ensure compliance with such provision.
(2) Where the owner of the immovable does not propose to enforce this provision himself, he shall give notice of the attachment to the person entitled to enforce it under sub-art. (1)
(3) Notice shall be given to the same person by the creditor proceeding to attachment.
Art. 1437.- 3. Time for enforcing provision.
(1) Where a person who has been informed of the attachment proposes to enforce the provision prohibiting attachment, he shall do so under pain of losing his right prior to the attached immovable being sold by auction.
(2) Where such person has not been informed of the attachment, he may enforce the provision within two years from the sale by auction.
(3) The periods of time laid down in this Article may not be extended in the instrument providing for the prohibition of attachment.
Art. 1438.- 4. Duty of purchaser.
(1) Whosoever enforces a provisions prohibiting attachment may require the person having acquired the immovable at the sale by auction to transfer it to him and shall in such case pay the price fixed in the instrument providing for prohibition or, where no price has been fixed therein, the price at which the immovable was knocked down to the purchaser.
(2) The provisions of the Chapter of this Code relating to “Unlawful enrichment” shall apply as regards the expenses made by the purchaser on the immovable and the deteriorations occasioned to the immovable when it was in the possession of the purchaser (Art. 2162-2178).
Art. 1439.- 5. Position of subsequent owner.
(1) Where the purchaser at the auction sale has assigned the immovable, the provision prohibiting attachment may not be enforced against the new owner unless he is shown to have known of the prohibition or he acquired the immovable gratuitously.
(2) Where the provision may be enforced, the new owner shall be in the same position as the purchaser at the auction sale would have been.
(3) The provision shall lapse where it may not be enforced.
Art. 1440.- Effect of provision prohibiting assignment.- 1. Who may enforce it.
(1) The owner who has assigned an immovable in violation of a provision prohibiting assignment may not invoke such provision to the detriment of the buyer.
(2) The said provision may only be enforced by the person having stipulated the prohibition or by a third party appointed by such person to ensure compliance with such provision.
Art. 1441.- 2. Time limit.
A provision prohibiting assignment may not be enforced except within two years from the assignment of the immovable and prior to the expiry of the period fixed in Art. 1431.
Art. 1442.- 3. Enforcement.
(1) The person who stipulated the prohibition or such other person as is entitled to do so under the instrument proving for prohibition may, within the period fixed in Art. 1441, exercise a right of pre-emption on the immovable on the conditions lad down in the instrument providing for prohibition.
(2) Nothing shall affect the right of the purchaser to bring an action against the person from whom he bought the immovable.
Art. 1443.- Trusts.
Nothing shall affect those provisions in the Title of this Code relating to “Bodies corporate and property with a specific destination” which deal with trusts (Art. 516-544).