Who maintains a servitude and who may move it

They are Section Three and Section Six of Chapter III of Title VI of Book Three of the Civil Code of 2020, Articles 948 to 953 and 970. The first sets how a servitude is exercised and who pays; the second, how it is defended.

It applies to the dominant and servient holders of an already constituted servitude. The acción confesoria of Article 970 belongs to the dominant holder against anyone who opposes, disturbs or threatens to disturb its exercise.

• For the dominant holder’s works, that they be necessary for use and conservation and neither alter the servitude nor make it more burdensome.Verified against the official source
• To be excused from contributing to the expenses, renouncing the servitude in the other dominant holders’ favour.Verified against the official source
• To move the servitude, that its exercise prove excessively burdensome and inconvenient, that the servient holder pay for it, and that the modifications not diminish the servitude’s value or benefit.Verified against the official source
• For the acción confesoria, proving the servitude’s existence and the injury caused or threatened, within fifteen years from the obstructive act.Verified against the official source

• The servitude’s title, or proof of possession if acquired by usucapión: Article 948 puts them ahead of the Code.
• Evidence of the benefit each dominant holder receives, because the proportion in which they contribute to the expenses depends on it.

1. 1

   Step 1: The title first, the Code second

   Article 948 sets the hierarchy: the title and, where applicable, the possession of a servitude acquired by usucapión determine the dominant holder’s rights and the servient holder’s obligations; failing that, the servitude is governed by the chapter’s provisions. Everything that follows only comes in when the title is silent.

2. 2

   Step 2: What comes included without writing it

   Article 949 says it in two sentences: on constituting a servitude, all the rights necessary for its use are understood granted, and likewise the servient holder is understood to assume all the obligations inherent to their relation with the burdened plot.

3. 3

   Step 3: The golden rule of exercise

   Article 950 puts it in one sentence with two halves that must be read together: the servitude must be exercised in the way most suitable to obtain the benefit for the dominant holder and, at the same time, the least inconvenient and injurious for the servient holder. Neither may the dominant holder exercise it however they please, nor may the servient holder hollow it out.

4. 4

   Step 4: The works: who makes them and who bears them

   Article 951 lets the dominant holder make, at their own cost, on the servient plot, the works necessary for the servitude’s use and conservation, but without altering it or making it more burdensome, choosing a convenient time and manner to cause the least possible inconvenience. And it binds the servient holder: they must tolerate, when necessary, the plot’s partial occupation to carry them out.

5. 5

   Step 5: The expenses: three rules, and one exit

   Article 952 gives them in a row. The works and activities necessary for the servitude’s establishment and conservation are charged to the persons who can benefit from them, absent agreement otherwise. With several dominant holders, all must contribute in proportion to the benefit each derives from the work, and whoever does not wish to contribute may be excused by renouncing the servitude in the others’ favour. And if the servient holder also receives some benefit from the servitude, they must contribute proportionally: it is not always only the user who pays.

6. 6

   Step 6: Moving the servitude

   Article 953 begins with the prohibition and continues with the exit. The servient holder may not impair the use of the constituted servitude, but if its exercise proves excessively burdensome and inconvenient, they may demand, at their own cost, the modifications they see fit in the form and place of performance, provided these do not diminish the servitude’s value and benefit. Failing voluntary agreement among those concerned, the variation may be obtained by judicial authority.

7. 7

   Step 7: If it is blocked: the acción confesoria

   Article 970 gives the dominant holder a real action to maintain and restore the servitude’s exercise against anyone who opposes it, disturbs it or threatens to do so. The plaintiff must prove two things: the servitude’s existence and the injury caused or threatened to their right. And there is a clock: the acción confesoria prescribes at fifteen years, counted from the obstructive act.

Expenses and works are settled between the parties. Varying the place or form of performance, when there is no agreement, and the acción confesoria go before the Court of First Instance. The Civil Code designates no agency to arbitrate them.

• Going to the Code before the title: the title governs, and the Code only comes in failing it.
• Exercising the servitude in the way most convenient for yourself without regard to the neighbour’s harm.
• Making works that alter the servitude or make it more burdensome.
• Stopping the dominant holder from partially occupying the plot while making the necessary works.
• Believing the servient owner never pays: if they receive benefit, they contribute proportionally.
• Moving the servitude on your own: agreement or judicial authority is needed, and whoever moves it pays.
• Letting fifteen years pass from the obstructive act: the acción confesoria prescribes.

These are the government pages this guide is based on.

• Poder Judicial de Puerto Rico

  Poder Judicial

  bvirtualogp.pr.gov