The institute of servitudes

Abstract

This thesis analyses the manner in which the institute of servitudes has evolved, ranging from its Roman law foundations to the landmark enactment of Article 686 of the Code Napoleon in the aftermath of the French Revolution. This work comprehends an analysis of the principles that have been developed over two millennia in an effort to strike the right balance between the use of this institute as a useful tool for the enhancement of the profitable use of immovable property, and the responsibility of safeguarding the liberty of immovable property, particularly in the interest of future generations. The various criteria in terms of which servitudes are classified have been identified and examined in the context of the Maltese legal system. In accordance with the category within which a servitude is located, there results the manner in which it is created and is extinguished. The concluding chapter of this work consists of a critical analysis of the current position of the institute of servitudes in the Maltese legal system. Reference is made to the manner in which this area of the law has been dealt with in Malta over the years. Finally, this thesis examines the way in which in recent years the Maltese Courts have recognized the locus standi of owners of tenements where an administrative rule creates a dominant-servient relationship, and raises objections to this change in attitude.