Legal Definitions - positive servitude

A positive servitude is a legal right that allows the owner of one property (known as the dominant property) to perform a specific action or use a particular part of a neighboring property (known as the servient property). Essentially, it grants permission for an active use of someone else's land for the benefit of your own. This is distinct from a "negative servitude," which would prevent the servient property owner from doing something.

Here are some examples to illustrate this concept:

• Example 1: Driveway Access

  Imagine a homeowner, Ms. Chen, whose house is located at the back of a larger lot. To reach the public street, she must drive across a designated strip of land belonging to her neighbor, Mr. Davies, who owns the front portion of the lot. Ms. Chen's property has a positive servitude, specifically an easement for a right-of-way, over Mr. Davies's property.

  This illustrates a positive servitude because it grants Ms. Chen the legal right to actively drive across Mr. Davies's land to access her own property. Mr. Davies's property is the servient property, burdened by this right, and Ms. Chen's property is the dominant property, benefiting from the necessary access.

• Example 2: Utility Line Installation

  Consider a new housing development that needs to connect to the municipal sewer system. The most direct and cost-effective route for the main sewer line runs underneath a corner of an adjacent, undeveloped private forest owned by a conservation trust.

  The housing development company would seek a positive servitude from the conservation trust. This servitude would grant the development the right to install and maintain the sewer pipes beneath a specific portion of the trust's land. The trust's property is the servient property, allowing the active installation and maintenance of utilities, while the housing development is the dominant property, benefiting from the necessary infrastructure connection.

• Example 3: Water Drainage

  A farmer, Mr. Rodriguez, has a field that frequently floods after heavy rains because water naturally collects in a low-lying area. To prevent significant crop damage, he needs to dig a small ditch to channel the excess water across a corner of his neighbor's pasture, Ms. Lee, into a nearby creek.

  Mr. Rodriguez would require a positive servitude from Ms. Lee. This legal agreement would give him the right to construct and maintain a drainage ditch on a specific part of Ms. Lee's property. Ms. Lee's pasture is the servient property, allowing Mr. Rodriguez to perform an action (digging and maintaining the ditch) on her land for the benefit of his dominant property (the farm field).