Termination of Servitudes

Servitudes were terminated in various ways, depending on the nature of the particular servitude and the way it had been created.

A personal servitude was extinguished when its holder died or underwent a capitis deminutio maxima (resulting in loss of liberty) or media (resulting in loss of citizenship).

Pursuant to the principle that no one could have a servitude over his own property (nulli res sua servit), all servitudes were terminated by merger (confusio or consolidatio): an event that occurred when the holder of the servitude became owner of the property in respect of which the servitude had been established.^[528] Moreover, a servitude ended if the holder ceded his right to the owner of the property in question. This cession was originally effected by means of in iure cessio, but under the law of Justinian a mere declaration by the holder of the servitude sufficed.^[529] A servitude was likewise extinguished if the property in respect of which it had been granted was destroyed or no longer served its purpose.

Finally, any servitude could be terminated by extinctive prescription if the relevant right had not been exercised for a certain period of time. Originally, the period for extinctive prescription was 1 or 2 years depending on whether the servitude attached to movable or immovable property. Under the law of Justinian, the relevant period was 3 years in respect of movables, and 10 years inter praesentes and 20 years inter absentes in respect of immovables. It should be noted, however, that the requisite non-use on which the extinctive prescription was based depended on whether the servitude in question was a positive or a negative one. A positive servitude came to an end if the holder simply failed to exercise his right. In the case of a negative servitude, on the other hand, termination occurred when the owner undertaking the burden of the servitude acted contrary to the servitude and the owner of the dominant property had not acted against him during the relevant period.^[530]

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