Servitudes

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SERVITUDES

SERVITUDES (Heb. שִׁעְבּוּדִים, shi'budim). Generally a person is prohibited from using his land in such manner as to cause an interference with his neighbor's quiet use or enjoyment of his own land. A man may therefore restrain his neighbor from such use and compel him to remove the cause of the disturbance. However, this right is not always available and the use of land in certain ways – even if disturbing to the neighbor – must sometimes be suffered by him (see *Nuisance). A person may agree with his neighbor to refrain from a particular use of his land, injurious to the latter, even if permitted by law; or to use his land in a manner injurious to his neighbor, even if such use is not permitted by law. In such event a proprietary right over the land is respectively granted to and extracted from the adjoining landowners. This right, called a shi'bud in the codes, is comparable to an "easement" in English law and serves to encumber land in favor of an adjacent owner, without the land being in the latter's possession.

Halakhic sources mention two categories of servitudes of this nature:

(1) use of land, which, without involving the use or employment of neighboring land, causes injury to the neighbor, such as the emanation of noise, smoke, noxious odors, moisture, and so on, to the adjacent land, or when the latter is made to vibrate, or when the crops thereon are damaged;

(2) an act which involves an encroachment on and the use or enjoyment of neighboring land, such as erecting projecting brackets on which chattels can be hung, affixing beams onto a neighboring wall, diverting the flow of rainwater onto a neighboring courtyard, or placing a ladder on neighboring premises in order to reach one's own roof (Sma, Ḥm 153:16 and Netivot ha-Mishpat, Mishpat ha-Kohanim, ibid.). These servitudes are distinct in two ways; firstly the encumbered land is not in the possession of the rightholder, and secondly, they may be exploited only by the use of the adjoining land. Hence it may be said that the servitude is one of land to neighboring land. The right may be acquired for a specific period or for good.

The term Shi'budim also has a wider meaning including all rights in the property of another (jura in re aliena). These include rights which are not specifically tied to the use of or encroachment on neighboring land and which may extend to both movable and immovable property, whether or not the rightholder is in possession of the encumbered property. Such Shi'budim are rights to use and enjoyment of the property itself and are a kind of limited form of ownership in the encumbered property, being a kind of kinyan perot and not a servitude only (usufruct; see *Ownership). These property rights are governed by laws which are entirely different from those applicable to the above-mentioned servitudes (easements). Instances thereof are: the acquisition of "a tree for its fruit, a dwelling for its occupation, sheep for its wool, a dovecote for the doves that will hatch therein, a hive for the honey that will accumulate there, an animal for its young, a slave for his handwork" (Maim. Yad, Mekhirah, 22:14; 23:2). These rights are a form of kinyan perot (usufruct), i.e., acquisition of the right to enjoy the use of the property itself (Maim., ibid., 23:1). After kinyan perot, the most important servitude of this class is the right of way over the servient land (bb 99b), whether a private path or public road. It is considered a propriety right in the land and not an encumbrance (see Resp. Rashba, cited inBeit Yosef; Ḥm 153, no. 8; cf. his Nov. bb 23a, 28b). The Talmud discusses the applicable laws in detail – including such matters as the measure of the width of private and public roads, the respective rights of the parties, the modes of acquisition, and the circumstances in which the landowner may change the route of a public road passing over his field.

Easements are acquired in the same way as other legal rights, i.e., by an act of kinyan (see Modes of *Acquisition). In the opinion of the geonim and the scholars of Spain (Nov. Ramban, bb 59a; Ḥm 155:35), they may also be acquired in a tacit manner, by the adverse use of the servient land without protest from its owner, who is aware of such use; but other proprietary rights mentioned above can be acquired in express manner only, like the acquisition of ownership (Nov. Rashba, bb 23a, 28b). The scholars of France differ, holding that all servitudes must be expressly acquired (Maggid Mishneh, to Yad, Shekhenim, 11:4; Tur, Ḥm 154). Consequently, a servitude exercised for three years, accompanied by the holder's plea that it was acquired from the neighbor, is evidence of title, as in the case of a plea of ownership to land. Other scholars are of the opinion that a servitude may be acquired by exercise of the right for a period of three years, without the need for any such plea (Tos. to bb 23a; s.v. והא; see also *Ḥazakah). All the scholars agree that easements of a particularly onerous nature are not customarily agreed to in a tacit manner and therefore have to be expressly acquired by purchase or gift with an accompanying kinyan. Instances thereof are the encroachment of smoke, noxious odors, etc. onto neighboring land, even if existing for a number of years (Sh. Ar., Ḥm 155:36). Some scholars are of the opinion that such servitudes, even when expressly consented to and assigned by way of sale or gift, cannot be validly acquired, and the assigner may withdraw his consent on a plea of mistaken kinyan, i.e., the mistaken belief that he would be able to bear the relevant harm (Tos. to bb 23a). Many of the posekim are of the opinion that insufferable harm in this context includes any interference with the neighbor's person, but not mere interference with his use of his property (Nov. Ramban, ibid. 59a). Easements are terminated in the same manner in which they are created. Thus the obligation may be extinguished if the servient owner repurchases the servitude, or if the dominant owner has ceased to exploit the servitude in a manner indicating his abandonment and waiver of its use, when it cannot be revived by renewed use (Resp. Rashba, vol. 1, no. 1133).

In the State of Israel, servitudes are governed by an original Israel law, the Land Law, 1969, which recognizes all kinds of jura in re aliena. Most of them can be acquired, in addition to the usual modes of acquisition, also by prescriptive use followed by registration in the Land Registry.

bibliography:

M. Bloch, Das mosaisch-talmudische Besitzrecht (1897), 49–59; Gulak, Yesodei, 1 (1922), 134, 141f., 146–8; Herzog, Instit, 1 (1936), 365–70; et, 7 (1956), 664–7; 10 (1961), 628–96; Z. Warhaftig, Ha-Ḥazakah ba-Mishpat ha-Ivri (1964), 241–60. add. bibliography: M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (legal digest) (1986), 78; B. Lifshitz and E. Shohetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (legal digest) (1997), 51.

[Shalom Albeck]

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