| Abstract: | The main theme of the diploma work described below, was a reasarch of a special institute in the area of civil law, more particular in the area of erga omnes rights regarding real estate. It belongs in the scope of so called real rights. It is an institute, which has a primary function to enable or to incrase practicability of, in most cases, neighboring immovables. This institute is reffered to as a servitude. In Slovenian law, servitudes can be whether in favour of an individually appointed person, or in favour of increased serviceability of certain immovables. This represents the difference between personal servitudes and land (praedial) servitudes. The latter institute is the one, to which havee dedicated my up-most attention.
A servitude in general is a charge, exploitation imposed on an immovable, the servient land, in favour of another immovable, the dominant land, belonging to a different owner. A land (praedial) servitude is a limited real right, offered to the land of another (the servient tenement), which confers on the owner of the dominant tenement, in principle, permanent, defined entitlements of use and enjoyment with regard to the servient tenement. I have distinguished this institute from its related form which can be formulated only in favour of an individually appointed person. I set up a plan, to process the theme selected within the chronological order, as it follows in practical work. A very important division of servitudes is the divison to positive and negative servitudes. The positive ones effect the right of ownership of the immovable on which the servitude is established, in a way, that the owner of the immovable in which’s benefit the servitude is established, can use the servient land up to a level agreed. The content of a negative servitude is represented in a limitation of a right of ownership in a way, that the owner of the servient land is not allowed to use his right of ownership up to a certain agreed level.
There are three basic ways to establish a land (praedial) servitude. The first one is the creation of this institute through a legal interaction between two or more individuals, as owners of relevant immovables, resulting in a binding form, contract. The second way is the creation through a decision of a competent agency, whether this is a court or some other administrative organ on a local level. The third and the last way for creating a real estate servitude is on basis of fulfilment of all of the conditions set by the applicable legislation. When conditions, set by law, are met, the servitude ex lege begins to exist. Through fulfilment of all the neccessary conditions set by the law or through the decision of a credible agency, whether this is a court or some other administrative local organ, the servitude begins to exist in that exact momment. When the servitude is created with a contract, the relevant momment in which it starts to exist, is the registration of this servitude in the land register. However, regardless of the way a specific servitude is established, they all need to be properly registered in the land register. This is of high importance, especcially due to the protection of trust, as to what it is written in the register. The basic principle of land register law in our country is, that nobody can be impaired for trusting the content of such a register. In the following chapters I have accurately described different types of servitudes in use. The important thing we got to know through this exploration, is the fact, that the servitude cannot be transfered in no other way, than alongside the property of an immovable, containing such a servitude. We say that the servitude is an accession to the right of ownership. Furthermore, I have described the principles applied for the servitudes. Principles are bounding, however rather wide and extensive legal guidelines, signifing the purpose and the scope of the relevant rules. The land servitudes are usually very long lasting, in some cases even permanent.
In the eleventh chapter I have explored the area of leg |
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