Constitution of servitudes on own property by unilateral imposition of the owner: Formal destination of the family father and reinterpretation of the "apparent charge"

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Abstract

According to the principle nemini res sua servit iure servitutis, the owner is traditionally not allowed to unilaterally impose a servitude between own property. This impossibility has led to a harmful limitation to the pecuniary interests of the owner. Some legislations have introduced exceptions to that principle, thereby creating the "servitudes of the owner". To allow the owners to constitute servitudes without meeting the requirement that dominant and servant lands must belong to different owners, doctrinaires have reinterpreted the current norm. Therefore, a rereading of the "apparent charge" of articles 881 and 938 of the Chilean and Colombian Civil Codes, respectively is done, which entails the formal destination of the owner, solving the problem through "destination made by the family father".
Original languageAmerican English
Pages (from-to)111-149
Number of pages39
JournalRevista de Derecho Privado
Issue number31
DOIs
StatePublished - 1 Jul 2016

Keywords

  • Apparent charge
  • Constitution of servitudes
  • Destination made by the father
  • Nemini res sua servit
  • Servitude of the owner

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