When a servitude is lost and how it is cancelled

It is Section Five of Chapter III of Title VI of Book Three of the Civil Code of 2020, Articles 964 to 969. It closes the servitude regime: how they end and what survives them.

It applies to the dominant and servient holders of a constituted servitude. If the dominant plot belongs to several in common, use by one prevents prescription as to the rest.

• For extinction by non-use, that fifteen years pass, counted according to whether the servitude is continuous or discontinuous, and that it not be on one’s own plot.Verified against the official source
• To extinguish it on uniting both plots, that the sole holder expressly extinguish it and obtain the registry cancellation, without prejudice to third parties.Verified against the official source
• To demand extinction after dividing or segregating, that the servitude bring no benefit to the resulting plot in question.Verified against the official source
• To extinguish a forced servitude of passage that stopped being necessary, restoring the indemnity received in proportion to the time it went unused.Verified against the official source

• The title of transfer, because Article 964(g) extinguishes for failing to state in it a servitude on one’s own plot published only by an apparent sign.
• Evidence of the date of last use or of the contrary act, because the fifteen-year period runs from it.

1. 1

   Step 1: The nine causes

   Article 964 enumerates them: non-use for fifteen years, except for a servitude on one’s own plot; fulfilment of the term or condition; extinction of the grantor’s right or of the servitude holder’s real right; renunciation by the dominant holder; redemption agreed between dominant and servient holders; total loss of either the servient or the dominant plot; failure to state expressly, in the title of transfer, a servitude on one’s own plot published only by an apparent sign; the disappearance of all benefit from its use or that use becoming impossible; and expropriation of the servient plot.

2. 2

   Step 2: The fifteen-year clock does not start alike for all

   Article 964(a) itself separates them: the period starts from the day the servitude stops being used for discontinuous ones, and from the day an act contrary to the servitude takes place for continuous ones. In a continuous one it is not enough that nobody notices it: an act contrary to it is needed to mark the start.

3. 3

   Step 3: The cause that has no going back

   Article 964(h) extinguishes the servitude by the disappearance of all benefit from its use, or if that use becomes impossible, and adds the sentence that decides many disputes: the servitude is not revived if its exercise later becomes useful or possible again. Once the benefit disappears entirely, needing it again does not bring it back.

4. 4

   Step 4: Personal servitudes die with the person

   The final paragraph of Article 964 says it without conditions: personal servitudes are extinguished by death, even if the agreed term or condition has not been met, where the dominant holder is a natural person. And absent an agreed duration, the servitude ends with the extinction of the juridical person that is the dominant holder.

5. 5

   Step 5: Buying both plots does not erase it by itself

   Article 965 corrects a common assumption: a servitude is not extinguished by the mere fact that ownership of the dominant and servient plots comes together in one person. What that sole holder may do is extinguish it and obtain its registry cancellation, without prejudice to third parties. The act is needed; the mere union is not enough.

6. 6

   Step 6: Dividing, segregating, aggregating or grouping

   Article 966 runs through the four cases. Modifying the dominant plot does not extinguish the servitude, nor may it make its exercise more burdensome. On division and segregation, if the servitude is useful only to some of the resulting plots, the servient holder may demand extinction as to the others. On aggregation and grouping, if the new plot’s structure means the servitude brings the dominant holder no benefit, the servient holder may demand extinction. And if it is the servient plot that is divided or segregated, the holders of the resulting plots that bring the dominant plot no benefit may demand extinction as to those plots.

7. 7

   Step 7: When the passage stops being needed

   Article 967 applies to the forced servitude of passage. If the passage granted to the dominant plot stops being necessary because its owner joined it to another adjoining the public road, the servient holder may ask for the servitude’s extinction, and must restore the indemnity received in proportion to the time it went unused. The same applies where a new access sufficient for the dominant plot’s needs is opened.

8. 8

   Step 8: Two final rules about the clock

   Article 968 says the manner of performing the servitude may be prescribed like the servitude itself, and in the same way: not only the right can be lost, the manner can be too. And Article 969 protects co-owners: if the dominant plot belongs to several in common, use by one prevents prescription as to the rest.

Extinction is asserted between the parties or before the Court of First Instance; the cancellation Article 965 allows corresponds to the Property Registry. The Civil Code designates no agency to declare it.

• Counting the fifteen years the same way for a continuous and a discontinuous servitude.
• Believing the servitude revives when the use becomes useful again: Article 964(h) says it does not.
• Treating the servitude as extinguished for having bought both plots, without the act of extinction.
• Forgetting that a personal servitude is extinguished by death even if the agreed term has not expired.
• Thinking that dividing the dominant plot extinguishes the servitude: it does not, but neither may it make it more burdensome.
• Demanding extinction of a passage that stopped being necessary without restoring the indemnity in proportion to the unused time.
• Assuming non-use extinguishes a servitude on one’s own plot.

These are the government pages this guide is based on.

• Poder Judicial de Puerto Rico

  Poder Judicial

  bvirtualogp.pr.gov