Article 1390

Décisions de la Cour suprême interprétant cette section

1. Arrêt de la Cour suprême n° 6226/2552 (2009)

   Section 1390 forbids the servient owner from doing anything that diminishes or impairs the benefit of a servitude. Where the burdened strip is the access way of a land subdivision, erecting shop stalls on it obstructs the use of the servitude and impairs it, whether or not motor vehicles can in fact pass along it.

   The first defendant registered a right of way over its land for the benefit of the lots in its housing subdivision, one of which the plaintiff bought. In 1998 the defendants built five steel-framed shop stalls on the servitude strip, leaving 2.5 metres of footway, and argued that no car could use the way in any event because of steps down to the public road. The Supreme Court held that the strip is the estate traffic way, so section 1390 applies whether or not cars can pass, and the stalls obstructed its use and impaired the servitude. It also rejected the argument that part of the servitude had lapsed as no longer necessary: the way connects the subdivision to a main provincial highway, so it is not credible that the buyers use it only as a footpath.

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2. Arrêt de la Cour suprême n° 3748/2546 (2003)

   Placing posts or obstructions that narrow a servitude path violates the servient owner's duty under section 1390 not to diminish the servitude's utility.

   The plaintiff, as dominant owner, had the right to use the four-metre-wide servitude path at any point and time. The defendant drove concrete posts into the path, narrowing it and making it inconvenient; this violated section 1390.

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Curated decisions with case numbers verified against the Supreme Court database. English renderings are the firm's editorial translation for study.