assignment civil law 2 real servitude vietnam civil law and dutch civil law in comparison

Servitude French Civil Code stated article 637: “The name servitude is given to the certain real rights which burden one piece of land and benefit another owned by someone else”.. A serv

SCHOOL OF LAW

Assignment Civil Law 2 REAL SERVITUDE: VIETNAM CIVIL LAW AND DUTCH CIVIL LAW IN COMPARISON

Group : 6

TABLE OF CONTENT

INTRODUCTION 3

CONTENT 3

I General knowlegde of real servitude 3

1 Servitude 3

2 Division of servitude 4

3 Real servitude (meaning) 4

4 Characteristic 5

II Real servitude in Dutch Law and real servitude in Vietnamese Law 5

1 Vietnamese Law 5

2 Dutch law 8

III “Rights to Adjacent Real Estate” and “ Erfdienstbaarheid” in comparision 13 1 Establishment 13

2 Content 14

3 Termination 15

IV Commentary on the comparison and experiences for Viet Nam 15

CONCLUSION 16

LIST OF REFERENCES 17

TEAMWORK REPORT 18

INTRODUCTION

Civil law is the most widely adopted legal system in the world A legal system

is a set of codes and procedures used to carry out laws Real rights are considered the traditional scope of property law in the world from time immemorial Real rights have two major categories: ownership rights and other rights with respect to property

Servitude in Civil law is divided into two main types of permission: Personal servitude and Real servitude In which, real servitude is a servitude registered over one immovable property (the dominant tenement), in favour of another immovable property (the servient tenement)

This summit will discuss the comparison of real servitudes in Dutch Law and Vietnamese Law In Section I, we will clarify the general knowledge of real servitudes Section II will analyze real servitude in Dutch Law and real servitude in Vietnamese Law Section III will compare the similarity and the differences between two states In the final section, we will make a comment and the experience for Vietnam that we have concluded

CONTENT

I General knowlegde of real servitude

1 Servitude

French Civil Code stated article 637: “The name servitude is given to the certain real rights which burden one piece of land and benefit another owned by someone else”

In this explanation, servitude is known as the relationship between two or more immovable things

A servitude is a qualified beneficial interest severed or fragmented from the ownership of an inferior property (servient estate) and attached to a superior property (dominant estate) or to some person (personal beneficiary) other than the owner

In civil law, ownership (dominium) is the only full real right whereas a servitude is

a subordinate real right on par with wayleaves, real burdens, security interests, and reservations

Servitude has been a legal frame since Roman Law In Roman Law an immovable thing was a subject of rights which have communicating requirement with other nearby immovable things

2 Division of servitude

Servitude is divided into two main types of permissions: Personal

servitude and Real servitude

Real servitude is the right to adjacent real estate According to Vietnam's Civil Law, this is part of ownership The person who has title to the property will agree to share part of his ownership with another individual The individual must

be the owner of the property adjacent to the share of the property The subject of the real servitude may vary based on who has title to the adjoining property This is the biggest difference between real servitude and personal servitude The subject of personal servitude is a particular individual That individual will receive the rights from the property owner The subject of the right can only be changed upon the death of the individual

3 Real servitude (meaning)

Real servitude or easement is divided into positive easement and negative easement Positive easement allows the burden owner to exercise the real right, negative easement allow the burden owner prevent the servant owner do some act affecting the burden owner’s real right

Pursuant to Article 245, Vietnamese Civil Code 2015: “Right to adjoining

immovable property means a right to be exercised on an immovable property (hereinafter referred to as obliged immovable property) to serve the exploitation

of another immovable property under ownership of another person (hereinafter

referred to as entitled immovable property).”

4 Characteristic

Real servitude has three outstanding characteristics

Real servitude must be attached to two immovable properties In which, entitled immovable property and obliged immovable property The facilitation of the obliged immovable property is essential because the entitled immovable property is the immovable property that has some limitations for the owner to use

Moreover, this right must be attached to immovable properties (things) but not to the owner of the property Therefore, when the owner of immovable property is changed through civil transactions, the new owner will inherit the rights from the old owner At the same time, the former owner will terminate their rights to the immovable property

Finally, real servitude has no economic value This right is not intended to exploit the value of the immovable property for-profit purposes The purpose of

a real servitude is to create favorable conditions in the daily life of the rightful owner It means that the owner of the real servitude does not profit from their rights to the adjoining property

II Real servitude in Dutch Law and real servitude in Vietnamese Law

1 Vietnamese Law

1.1 Location

Real servitude in the Civil Code 2015: the concept of Real servitude is not used, but instead is the idea of the Right to adjacent real estate In Vietnam's civil law since

1945, there was no document directly regulating the Real servitude until the 1995 Civil Code came out, then supplemented and replaced by the 2005 Civil Code and

most recently the 2015 Civil Code 1995 and the 2005 Civil Code of Vietnam do not use the term Real servitude, but mentioned in the chapter “Other provisions on property rights” In the Civil Code 2015, the right to translate is referred to with the term Right to adjacent immovable property in the section Other rights to property from Article 245 Right to adjoining immovable property to Article 256 Termination

of right to immovable property adjacent Also mentioned in the following Articles: Obligation to respect building codes (Article 174); Boundaries between immovable properties (Article 175); Landmarks separating real estates (Article 176); Ensuring safety in case trees and structures are at risk of causing damage (Article 177); Open the door to look at the adjoining real estate (Article 178)

1.2 “Rights to Adjacent Real Estate”

Article 245 Right to adjoining immovable property Right to adjoining immovable property is the right to be exercised on an immovable property (referred to as the entitled immovable property) in service of the exploitation of an immovable property other property under the ownership of another person (referred to as entitled immovable property) Geography is the relationship between two properties (two pieces of land); Geography is associated with the land, not with people A plague is not just a right to exercise on adjoining land because sometimes people do not need to exercise a right on land subject to an epidemic, but only ask that the land

is in a state of tolerance for a certain right

1.3 Establish

Article 246 Grounds for establishing rights to adjoining immovable property The right to adjoining immovable property is established by natural topography, by law,

by agreement or by will In the 2015 Civil Code, two more bases were added, which were established by natural topography and by will The establishment of this geographical location can be the result of an agreement or a unilateral legal act such

as a will This is extremely reasonable when creating more legal grounds to establish this right in accordance with reality

1.4 Content

Regarding the content specified in the following articles

Article 247 Effect of rights to adjoining immovable property

The right to adjoining immovable property is valid for all individuals and legal entities and is transferred when the immovable property is transferred unless otherwise provided for by relevant laws

Article 248 Principles for exercising rights to adjoining immovable property Exercising rights to adjoining immovable property as agreed by the parties If the parties do not reach an agreement, the following principles shall be followed:

1 To ensure the reasonable needs of the exploitation of the entitled immovable property in accordance with the use purposes of both the entitled immovable and the entitled immovable property

2 Not to abuse the right to the immovable property subject to the right

3 Not to perform acts that prevent or make it difficult to exercise the right to the entitled immovable property

Article 249 Change in the exercise of rights to adjoining immovable property

In case there is a change in the use and exploitation of the entitled immovable property leading to the change in the exercise of the right to the entitled immovable property, the owner of the entitled immovable property must notify the owner in advance property owner for a reasonable period of time The owner of the entitled immovable property must make it easy for the owner of the entitled immovable property to comply with this change

In addition, there are specific cases in Article 250 Obligations of owners in rainwater drainage Article 251 Obligations of owners in wastewater drainage Article 252 Rights on water supply and drainage through any Adjacent movable

property Article 253 Right to watering and drainage in cultivation Article 254 Right

to passage Article 255 Connecting to other real estate power transmission and communication lines

1.5 Termination

Article 256 Termination of rights to adjoining immovable property

The right to adjoining immovable property shall terminate in the following cases:

1 Entitlement immovable and entitled movable property are owned by a person

2 The use and exploitation of real estate no longer gives rise to the need for enjoyment of rights

3 As agreed by the parties

4 Other cases as prescribed by law

Similar to the establishment of the 2015 Civil Code, there are two more grounds for termination: According to the agreement of the parties and other cases as prescribed

by law This facilitates the parties to agree, change, and terminate rights At the same time, this right can also be terminated according to the provisions of law, ie by the decision of competent state agencies for a certain common purpose

2 Dutch law

2.1 Location

The Dutch Civil Code gives a general description of a servitude (erfdienstbaarheid)

in article 3:70 BW:‘‘A servitude is a charge imposed upon an immoveable thing, the servient property, in favor of another immoveable thing, the dominant property.’’ 1

In article 3:71 BW the actual content of the servitude is more elaborated: ‘1 The charge imposed by a servitude upon the servient property consists of an obligation

to tolerate or not to do something on, above or under either of the properties The

1 https://www.eui.eu/Documents/DepartmentsCentres/Law/ResearchTeaching/ResearchThemes/EuropeanPrivateLaw/RealPropert

deed of establishment may stipulate that the charge also includes an obligation to construct buildings or works or to grow plants, necessary for the exercise of the servitude, provided such buildings, works and plants are wholly or partially situated

on the servient property 2 The charge imposed by a servitude upon the servient property may also consist of an obligation to maintain the servient property or the buildings, works or plants which are or will be wholly or partially situated on the servient property.’ 2

2.2 “Erfdienstbaarheid” ( Easement)

In Dutch law the right of real servitude is known as the right of “erfdienstbaarheid”

An easement is a real property right with which a land plot (the servient land) is encumbered on behalf of the owner of a neighboring land (the dominant land) and which forces the owner of the encumbered land to tolerate that the owner of the neighboring land makes use of his property in a certain way or that the owner of the neighboring property is allowed to do something on his own land which the owner

of the servient land otherwise could have stopped (Article 5:70 (1) DCC) 3 The owner of the neighboring - dominant - land has consequently several rights and powers to be exercised with respect to the servient land of someone else For this reason, the owner of the servient land has no longer a full right of ownership Characteristic for an easement is that its proprietor can uphold these rights not only against the owner of the servient land who has established this limited property right

on his property, but against all succeeding owners of that land as well as against all proprietors who have acquired a limited property right in that land themselves after the establishment of his easement

2 https://www.eui.eu/Documents/DepartmentsCentres/Law/ResearchTeaching/ResearchThemes/EuropeanPrivateLaw/RealPropert yProject/TheNetherlands.PDF

2.3 Effectiveness

An easement can only impose well defined legal duties on the owner of the servient land But these duties cannot imply a duty to do something, although there are some exceptions So in general, the owner of the servient land cannot be forced to fulfil any activity on behalf of the owner of the dominant land The stripped owner (this

is the owner of the servient land) preserves therefore all other possibilities to use his property himself In that sense the rights and powers derived from an easement are much less damaging for the owner of the encumbered immovable thing (servient land) than the rights and powers that are granted in the form of a long leasehold

An easement shows many resemblances with a qualitative obligation This is an obligation, set up by an ordinary agreement, but written down in a notarial deed, which permits the creditor to make use of the immovable property of his debtor in a specific way and that, after it has been published in the public registers for immovable property, has real effect All succeeding owners of the burdened immovable property automatically become solely because of their quality as owner of that property - the – debtor of the original creditor A debt can only be transformed into a qualitative obligation when the performance that the debtor has to fulfil is a duty to tolerate that the creditor uses his immovable property in a defined way Therefore, the content of a qualitative obligation looks the same as that of an easement But contrary to an easement, which always is vested on a land on behalf of the neighbouring land, the creditor of a qualitative obligation doesn’t have to be the owner of the adjourning property and not even the owner of any land at all It’s an easement without the presence of a dominant land and with the restriction that it cannot impose any duty on the debtor to perform an activity with regard to his land