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§ 172. Definition of real servitude
- (1)
- A real servitude encumbers a servient immovable for the benefit of a dominant immovable such that the actual owner of the dominant immovable is entitled to use the servient immovable in a particular manner or that the actual owner of the servient immovable is required to refrain to a particular extent from the exercise of the owner's right of ownership for the benefit of the dominant immovable.
- (2)
- A real servitude shall not require the owner of the servient immovable to perform any acts except acts which assist in the exercise of the real servitude.
§ 173. Creation of real servitude
- (1)
- A real servitude is created by entry in the land register.
- (2)
- The provisions concerning acquisition of immovables apply to the acquisition of a real servitude unless otherwise provided by law.
- (3)
- Only an owner may establish a real servitude for the benefit of an immovable or encumber an immovable therewith. A real servitude may be established without the consent of the owner only in the cases provided by law.
- (4)
- An immovable already encumbered with a real servitude may be encumbered with a new real servitude only if this does not prejudice the earlier established servitude. An owner may only encumber an immovable encumbered with a right of superficies or usufruct with a real servitude with the consent of the superficiary or usufructuary.
- (5)
- A real servitude cannot be created by prescription.
§ 174. Extinguishment of real servitude
- (1)
- A real servitude extinguishes by deletion of the entry from the land register.
- (2)
- If one and the same person becomes the owner of a real servitude and the servient immovable, the real servitude shall be deleted from the land register on the basis of an application from the person. The real servitude continues as a real right until deletion of the entry.
§ 175. Extinguishment of real servitude by agreement
A servitude may be deleted from the land register by agreement of the owners of the dominant immovable and servient immovable by redemption of the servitude.
§ 176. Extinguishment of real servitude on demand of owner of dominant immovable
- (1)
- Failing agreement on extinguishment of a real servitude, the owner of the dominant immovable has the right to demand deletion of the real servitude from the land register and shall compensate the owner of the servient immovable for any damage arising from extinguishment of the servitude.
- (2)
- The owner of the dominant immovable shall notify the owner of the servient immovable of the extinguishment of a real servitude of an unspecified term or of the premature extinguishment of a real servitude of a specified term six months in advance.
§ 177. Extinguishment of real servitude on demand of owner of servient immovable
- (1)
- If the benefit receivable from a real servitude is small in comparison to the encumbrance of the servient immovable, the owner of the servient immovable has the right to demand deletion of the real servitude from the land register and shall compensate the owner of the dominant immovable for any damage arising from extinguishment of the servitude.
- (2)
- If the owner of a dominant immovable loses interest in the real servitude, the owner of the servient immovable has the right to demand deletion of the real servitude from the land register. A loss of interest is presumed if the owner of the dominant immovable has not used the real servitude for ten years or if the owner has allowed the use of the servient immovable in a manner which is contrary to the real servitude during the same period.
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