Preparation and drafting of a servitude deed

Easement is a burden imposed on a property, the servient tenement, in favor of another property, the dominant tenement, and owned by a different owner.

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The notary may be given the mandate to draft a servitude deed for several reasons, including creating a right of way and rectifying illegal views. In order for a servitude to take effect, it must necessarily be established by contract, will, or the effect of the law. Consequently, a servitude cannot be established by prescription under any circumstances. Furthermore, since real rights will have been created, the deed must be registered at the land registry of the relevant land district in order to be binding on third parties. If the document is not registered and the owner of the servient estate sells to a third party in good faith, this servitude will not be binding on the bona fide purchaser.

"A servitude is a burden imposed on an immovable, the servient estate, in favor of another immovable, the dominant estate, and owned by a different owner."

The mention of "burden" is important in real estate, especially during a sale. Indeed, when a seller sells to a purchaser, the servitude constitutes a burden and all property warranties will apply.

There are several types of servitudes that the notary will draft, including:

  • Right of way servitude;
  • View servitude;
  • Encroachment servitude;
  • Owner's destination servitude;
  • Mutual encroachment servitude regarding services;
  • Servitude for the external appearance of buildings;
  • Construction servitude;
  • Servitude for noise and vibration.

A servitude can be for the benefit of an immovable. In such a case, it will be a real servitude. It can also be for the benefit of a person, in which case it will be a personal servitude.

In the case of a right of way servitude, the notary, through a land surveyor, must define the scope of the servitude, that is, where the right of way is exercised. If the notary does not define the scope, it will be concluded that the servitude covers the entire property. Thus, this scope must be defined by a notarial deed (reduction of servitude deed) specifying the strip of land affected by the servitude.

In the servitude deed, it may be customary for the owner of the servient estate to perform maintenance work. If they find this burden too heavy, they can be released from their obligations by abandoning the parcel of land. Of course, other provisions can be included in the deed.

In addition to the owners of the dominant and servient estates, creditors of the servient estate may intervene in the deed to give their consent. Indeed, if a mortgage creditor does not intervene, they could hold the owner of the servient estate in default under their mortgage. This type of contract states that the debtor cannot consent to any burden, including a servitude, without the lender's consent.

The notary prepares the servitude deed and obtains the signatures. The notary must also ensure the capacity and identity of the parties. For individuals, the notary will verify, among other things, their marital status and matrimonial regime. For corporations, we will verify the legal existence of the company and its registration in the appropriate registers. Finally, the notary prepares the copies of the servitude deed in original and ensures its registration at the land registry.

It is therefore important to consult Notaire-Direct, specializing in this matter, because they:

  • are legal advisors;
  • are specialists in contract drafting;
  • are required to have liability insurance;
  • are specialists in title searches and can therefore verify the validity of the property's title.
If you need more information on this service, please contact us
514 374-4303
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