Law, in its rigidity, has always tried to temper the passing of time by adapting it and using it to its own means, harnessing its effects over some powerful legal institutions (Căpățână, 2007). In this article, I have chosen to present a matter of significant importance: the effects of the acquisitive prescription over the right of servitude.
The right of servitude is a charge imposed on an estate for the benefit of a different estate, becoming a perpetual, accessory and indivisible right, a true asset for the owner of the servitude. It is therefore the result of a co-existence, ‘a duality of lands and owners’ (Munteanu 2008, p.57; Ungureanu & Munteanu 2008, p.525) which leads to this asymmetric relationship between them. On the other hand, easement is a dismemberment of the right of property (dominium), which gives to the holder of the dominant fund certain prerogatives, or powers, over the subservient fund (Stoica 2006, p. 532).
1.The acquisitive effect over the right of servitude in the old regulations
By analysing the old regulations, I have reached the conclusion that although the general rule is the principle of freedom in creating servitudes, only certain categories can be acquired through usucaption (also known as acquisitive prescription), mainly those that are both continuous and apparent (Ungureanu & Munteanu 2008). The positive effects of time passing are strictly limited by imperative legal provisions. The legislature restricts the area of incidence for the acquisitive prescription by stating that non-apparent and non-continuous servitudes may only be acquired through titles.
1.1. Was a typical possession necessary for gaining a continuous and apparent servitude through usucaption?
The basis of a continuous servitude was a past and apparent human action that, once completed, did not require any further activity from the actor. Once the action was finished, the servitude became a judicial fact, which did not imply a typical possession, but still marked the starting moment for the term of usucaption.
Continuous possession, in this case, had a different meaning from the possession required in the case of acquisitive prescription of the full right of property or usufruct, where possession had to be exercised in a continuous fashion, without any abnormal intermissions. For the right of servitude, continuity did not imply constant or frequent acts of possession, but merely the simple existence of the possibility for continuous possession. For this reason, certain authors (Lulă, 2008) have considered that a continuous servitude is self-exercisable, not requiring any involvement from man (Micescu, 2000).
By taking this rationing even further, I consider that the rules pertaining to property rights or usufruct should not be applied to the usucaption of the right of servitude, because a continuous and apparent servitude does not imply the exercise of the usus and fructus as elements of property over the goods of another. To put it briefly, it is just a simple matter of fact that perpetuates itself over time.
1.2. The acquisitive prescription’s lack of effect over non-apparent and non-continuous servitudes
The exercise of a non-continuous servitude implies constant and normal interruptions, which are part of the nature of the goods. It is impossible for it to become a continuous one, because it cannot be imagined without the regular act of possession (Alexandrescu, 1909; Stoica, 2006). ‚From a logical point of view it cannot become continuous’ (Lulă, 2008) because it cannot exercise itself, per se. To exemplify this, the doctrine has come up with the example of the right of way, which can be considered the most important non-continuous and non-apparent servitude. For the non-continuous and non-apparent servitude to become continuous and apparent, the owner of the dominant fund would be required to exercise acts of use of a continuous and apparent right of way, without the actual fact of man passing through to make it continuous, in other words, making it a passing without passing, which would be absurd (Lulă, 2008).
The impossibility of acquiring non-continuous and non-apparent servitudes through adverse possession generates a presumption of precariousness (Lulă, 2008), which characterizes the acts of adverse possession done by the dominant fund owner with the permission of the subservient fund owner. Possessory actions against third parties would still be available to the holder of the servitude, due to his/her quality as depositary. Even so, by bringing evidence of the existence of a non-continuous and non-apparent right of servitude we still hit a dead end, as it is not compatible with the positive effect of the acquisitive prescription.
Furthermore, we wish to highlight that the acts through which a non-continuous and non-apparent servitude is manifested actually represent the normal neighbourly relationship that ought to exist between the owners of two adjacent funds. They ought to behave in a civilized way, without bringing any harm to the property of the other. So it would be against reason and common sense to turn the good will of the owner of the subservient fund against himself. (Cantacuzino, 1921) By admitting the effects of adverse possession on the basis of acts that can be considered as merely tolerances by the owner by the very reason of the lack of animus domini, would be equivalent to a form of ‚fraud’ in the private law by ‚irrefutably compromising the negative neighbourly obligations’ (Lulă, 2008). One can notice, in this context, the right of the owner of the subservient fund to interrupt the exercise of acts specific to the servitude made by the other owner. Taking advantage of the neighbour proprietor’s good will, and, thus, breaching normal relations, gives birth to a warranty obligation. Because continuous and apparent servitudes are self-executed, without any actual involvement from the holder, it is considered that they do not affect normal neighbourly relations, as the only interfering act is done at least thirty years before. This is the aspect that the law chooses to protect.
To conclude, through the (1) interdiction imposed by the legislature, (2) the objective impossibility to be transformed into continuous and apparent servitudes, and (3) by doctrinaire association to acts of possession that are simply tolerated, non-continuous and non-apparent servitudes could not be acquired through usucaption according to the old regulations.
2.Servitudes’ acquisitive effect in light of the new regulation
The New Civil Code, by creating new forms of usucaption - tabular and extra-tabular- tried to bring together the acquisitive prescription and the system of real estate publicity. Therefore, as the entirety of the legal institution of usucaption has been thoroughly altered through the new law, the effects over the right of servitude are also going to be new, thus creating a new basis for future opinions and doctrinaire interpretations.
2.1. Gaining the right of servitude through extra-tabular usucaption (also called non-registered adverse prescription)
According to Article 930 of the new regulations, one can acquire both the right of property and its dismemberments (Peptan, 2010) through extra tabular adverse prescription after exercising possession for ten years and after transcribing his right in the land register. However, this applies in specific situations: the registered owner is deceased or has ceased to exist, a waiver to the right of property has been transcribed in the land registry for that fund, or if the estate was not previously transcribed at all.
The right of servitude is no longer acquired through the mere passing of time; it is required for it to be transcribed in the land registry, for the prescribed amount of time and only if one of the three conditions is fulfilled. Also, Paragraph 2 of the same article imposes another condition: that no other person had previously submitted a request to the land registration office for the same estate on the ground of usucaption.
Then, by analysing Article 763, we can notice that only positive servitudes can be acquired through extra-tabular adverse possession. According to Article 762 (2), positive servitudes are those through which the owner of the dominant fund exercises prerogatives of the right of property over the subservient fund, i.e. the right of way. In contrast to the former regulations, we consider that at present all types of servitude (continuous and apparent, non-continuous and non-apparent, continuous and non-apparent, non-continuous and apparent) can be acquired through extra-tabular usucaption as long as they are positive. Even if the doctrine continues to assimilate non-continuous and non-apparent servitudes to acts of tolerance, in the context of the new statutes we are no longer on a ‘dead end’, proving the existence of animus domini (the intention to own) now becoming relevant.
Although the current regulation seems more permissive, in reality the practical applicability of it is actually quite reduced because of the multiple conditions imposed. Furthermore, by briefly analysing Article 916 (2) of the New Civil Code, it is noticeable that, similarly to the case of dismemberments of the right of property, the condition of utile possession should also be taken into consideration. First of all, I believe that this condition of utile possession should not be requested in the case of usucaption of continuous and apparent easements for the very reasons mentioned before. Secondly, I consider that the moment when the right is gained in this manner is not the moment of registration, but the moment when the request for registration is submitted (Article 890 alin. (1) C.civ). As consequence, the condition of admission of the application for registration should not be imposed, contrary to the beliefs of other authors (Peptan, 2010).
To conclude, I consider that the legal importance of passing of time cannot be doubted. However, regardless of any modifications that have come and that will come over the statutes and despite the changes in the structure of usucaption and extinctive prescription, they will forever have a powerful influence, stretching out their powers over peculiar rights such as servitudes.