The servitude by destination of the father of the family is one legal figure which also applies in condominium areaespecially when trying to understand whether implied rights exist between the various properties or common parts of a building. In simple words, this easement occurs when, before the division of a property, a situation of utility already existed between two parts of it. If these parts are then separated and sold to different owners, that service relationship continues to exist as well without a written agreementor a specific mention in the documents. Let’s try to understand more.
What it consists of
The servitude by destination of the father of the family is one non-negotiated easementwhich is established automatically when two properties initially belonging to a single owner, or in a relationship of mutual service or utility (an access, a passage, or the passage of systems such as pipes), are separated, without it being necessary a written document. This situation continues even after the division, based on the assumption that the previous owner has “destined” the subservient fund serving the dominant fund already before the division.
In condominiums, this type of easement can emerge when the real estate units derive from a subdivision of a single property (for example, a single property divided into apartments), or a common part or an element of exclusive property performs a utility for other units, without an easement being explicitly indicated in the division deed, or in the condominium regulations.
Why it is important in condominiums and how to recognize it
The issue is not of secondary importance, because in a condominium situations often occur in which some parts of the building, despite being exclusive propertythey are needed other units. This can generate conflicts between condominium ownersespecially when one of them tries to limit the use of these areas, or does not want to contribute to maintenance costs. Consider the case of a gate or a private driveway which everyone uses to access their properties.
To understand if an easement of this type exists, we must first reconstruct the history of the property. We start by checking whether, before the division, there existed a service situation between the different parts (for example, passages, connections of systems or use of common spaces). Then you need to make sure that this utility remained unchanged after the split.
In the case where, for example, the water pipes of a condominium cross a private housing unit to reach other properties, even if there is no specific contract that establishes this situation, it is still a utility relationship between the parties which pre-existed the subdivision and which, by law, can constitute an easement.
What the law says
The reference legislation is article 1062 of the Civil Codewhich regulates servitude by destination of the father of the family. For this to apply, it is necessary to demonstrate that the service situation between the two funds already existed when they belonged to a single ownerand that this situation continued even after the division. To provide this evidence, documents such as floor plans, deeds of sale or condominium regulations can be used. Testimonials or technical findings can also be useful.
In case of disputes
It is not uncommon for discussions to arise on these issues, especially in condominiums with complicated histories. Disputes between condominium owners can arise when a condominium owner restrict access or use of a common part in favor of others, or a contribution is requested towards the costs of maintaining systems or structures which, according to one or more condominium owners, are not of use to them.
In these situations it may be necessary the intervention of a lawyer or of an expert to clarify whether it is really an easement intended for the father of the family, and what the rights and duties of the condominium owners involved are.