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A

servitude is simply a property right, part or all of which has been accorded to other than the owner, or, put another way, it is a limit on a property right. In many jurisdictions it is called an easement.

The most commonly encountered servitude is a right of way. In such an arrangement, a property's title may stipulate that a neighbouring property owner has the right to pass over the first property to gain access to the public road, or to the lake. Over the years, servitudes have been created for many reasons, so many that the mind boggles. In the small town of Ste- Lucie, there were so many servitudes to draw water, running in so many different directions, that a plan showing them all would have resembled a plate of spaghetti. The municipality installed an aqueduct just to keep the peace. One servitude we came across declared that the property could not have more than 10 houses erected upon it. Another declared that all property rights to a triangle of land were accorded to the neighbouring land, except the right to use the area of the triangle in calculating the minimum area required for a legal subdivision.

A really confusing, and fairly typical, servitude states that a neighbour has the right of passage on foot for access to the lake. This one has been challenged many times. The owner of the land tells the neighbour that he will respect her right to pass, but not to stop, obliging her to cross the land only in order to reach the water but forbidding her to sit on the beach. In one case that we saw, the servitude gave the right of passage to water the neighbour's horses and cattle. One hot summer day, after being told that she could not sit on the beach, she arrived with a thirsty horse, and, of course, the sunbathers were obliged to make room.

The right of first refusal is the one which probably bears most directly upon the sale of a property. In this servitude, there is a limit placed on an owner's right to sell the property. It usually states that, if the owner receives a promise to purchase his property that is acceptable to him, he must then offer the property to the holder of the right on the same terms and conditions for a specified period of time. The holder of the right then has the option to accept to purchase, or to decline, in which case the original promise to purchase can proceed. This type of arrangement can actually be helpful in a sale under certain conditions, which include a time delay of reasonable length, and a coherent reason for the servitude's existence. A right of first refusal, because it relates to the actual purchase, should be disclosed up front. If it is declared, then any prospective purchaser is aware that there is another party who has an interest in the property, and he is more likely to make a serious offer. It is this fact which can actually help the sale. Often properties are for sale for a long time before there is an offer. A buyer may come in with a low offer to see how anxious the vendor is to get out. If a first refusal exists, it stands as a clear reminder that there are other interested parties, and that a low bid may push the property to someone else. I have seen this cause a buyer to consider simply what his best offer would be, and make that offer right from the start.

Of course it is important to declare any servitude. They are real rights, and will not disappear if ignored, but, on the contrary, they can threaten a sale if they come up only during the notarial search.

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