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Services de Classe Normale
hémi-surjets
Jan 18, 2020 06:48
4 yrs ago
22 viewers *
French term

en charge et en droit

French to English Law/Patents Law: Contract(s) Property purchase agreement
Les acquéreurs souffriront et exerceront les servitudes en charge et en droit, concernant l’immeuble vendu, régulièrement inscrites au Registre Foncier, ainsi que toutes les restrictions du droit de propriété légalement dispensées de l’inscription.
Proposed translations (English)
5 +1 all easements encumbering or benefiting the property
4 servient easements and dominant easements (or see below)
3 negative and positive easements (Scots law) servitudes
3 -3 in charge and in law
References
Positive and negative easements
Change log

Jan 18, 2020 10:22: writeaway changed "Field (write-in)" from "Purchase Agreement" to "Property purchase Agreement"

Jan 18, 2020 11:06: writeaway changed "Field (write-in)" from "Property purchase Agreement" to "Property purchase agreement"

Discussion

SafeTex Jan 26, 2020:
@ Ms. Hall Okay. If you say so.
Eliza Hall Jan 26, 2020:
@SafeTex SafeTex: "they all apply. You can't claim exemption from those you don't like, whether dominant, servient, positive or negative.... why rule them out?"

I didn't rule them out. A servient easement IS, by definition, either a positive or negative one (depending on what it requires you, the person burdened by the easement, to do). That's just not what this text says.

Saying "this means servient easement" does NOT mean "it's not a negative easement." Things have multiple facets. A sandwich can be food; a source of carbohydrates; maybe a meal; maybe a source of protein. If someone wrote "I just ate a sandwich, so I don't need any more carbs," that wouldn't tell you whether or not it had protein in it. And "servitude en charge" doesn't tell you whether the easement is pos. or neg.

Positive vs. negative isn't the right translation here -- not because they AREN'T positive or negative, but just because that is not what it's talking about. Our argument is like so:

SafeTex: "Why not translate 'carbs' as 'protein'?"
Me: "Bc that's not what it means."
SafeTex: "But why rule out protein?"
Me: "I'm not ruling it out. It just doesn't say that."
SafeTex: "BUT PROTEIN!"
SafeTex Jan 26, 2020:
@Ms. Hall Germaine understood the dilemma and actually suggested a compromise in this very discussion if you care to check.

I don't think this was a compromise to keep the peace (maybe that too) but more because she realized that in all probability, the writer was referring to all types of easements.

Because, whatever easements there are, they all apply. You can't claim exemption from those you don't like, whether dominant, servient, positive or negative. And positive and negative easements nearly always exist like "view" so why rule them out?

Can't be bothered to answer the rest about the doctor.
Eliza Hall Jan 26, 2020:
@SafeTex You wrote: "Have you still not learned to drop the arrogant "I'm a lawyer, you're not" line?"

Would you say that to a doctor? Let's say someone posted a French medical term that some people took a stab at translating, and then a bilingual doctor/translator came into the discussion to explain that the term referred to (let's say) a particular phenomenon seen in chemotherapy, and that in English the phenomenon was called X.

Then you and Adrian insisted over and over that it was actually called Y, or at least certainly not X. And the doctor explained, perhaps with occasional unkind but understandable flashes of impatience, what the difference between X and Y was, and a native speaker, Germaine, confirmed that it was X... but you kept insisting that the doctor must be wrong!

Would you do that?

Or are you capable of recognizing that sometimes by virtue of their training and profession, people know more about a topic in their own field than you do?

If you're capable of recognizing that, I'm curious why you insist on not recognizing it here -- even in the face of a native speaker saying I'm right! -- and accuse me of "arrogance" for simply trying to answer Eren's question.
SafeTex Jan 25, 2020:
@ Ms Hall Ms.Hall

Have you still not learned to drop the arrogant "I'm a lawyer, you're not" line?

You have shot down so many answers recently that have been chosen by the majority of translators (or the asker) as right.

A very recent example would be "avocat constitué près de".

The problem is not the discussions themselves but your continual flak of disagrees to answers that are (probably) right or at least deserve due consideration, accompanied with remarks like "WRONG", "INCORRECT" (your bold this time, not mine).

Your psycho-rigidity does you a disservice.
Adrian MM. Jan 25, 2020:
@ asker Ben buradayim - here I am in Turkish! It might be a good idea now to cogitate over the closely reasoned answers and arguably erudite European vs. North American arguments, closing the question one way or the other or no way at all. Thanks and Teşekkür ederim.
Eliza Hall Jan 25, 2020:
SafeTex, I will try one last time to explain this.

Yes, easements are in a sense "reciprocal" (not quite the accurate word, but they do have effects on both parties). However, that's not the only fact about them. There are others, such as:

1. When looking at 2 neighbors: who is burdened by this easement, and who is benefited? (IOW, to whom is this easement "en charge" vs. to whom is it "en droit").

2. When looking only at the burdened party, HOW are they burdened: are they required to do something, or to NOT do something? (IOW: is it a positive or negative easement?).

I hope that's clear. If it's not, please remember that if an astrophysicist, neurologist, chemical engineer, car mechanic or pastry chef, etc., were explaining some subtle nuance in their field, there would be a point past which I could not follow them.

And when lawyers explain subtle nuances in their field, there is a point when non-lawyers cannot follow them (that point is different for each non-lawyer, depending on their backgrounds, interests, etc.).

There's no shame in it. But if, after reading the above and the rest of my discussion posts, you still don't get it, then we have reached that point.
SafeTex Jan 25, 2020:
@ Ms. Hall So you think that

You say

"Positive and negative easements are BOTH burdens (your bold)

okay, it' s a way of looking at this but easements are normally reciprocal!

If we forget the very often used e.g. of access through another land and take instead the servitude de vue.

Do you think that Immeuble A has this burden but Immeube B opposite does not?

"Immeuble A is not only burdened by it but protected by it. This easement applies to BOTH buildings."

This is why the writer uses two verbs (souffriront et exerceront). He clearly means that there are NOT only burdens but reciprocal rights.

After that, we can debate the ins and outs but you should not have shot down the positive and negative easements answer as nearly all easements are reciprocal like how close you can build a chicken run to your neighbour's garden.


Eliza Hall Jan 23, 2020:
@Adrian As a side note, I'm puzzled by your repeated references to having 50 years of experience, going back to 1969, in whatever legal topic is under discussion (here, real property law).

How do you have so much experience, when you were only admitted to the bar in 2000, and have since retired?
Eliza Hall Jan 23, 2020:
@ SafeTex - PS You asked below, "Am I right in now thinking that the "servient and dominant easements" refer to the land, and the positive and negative easements refer to the actions that you can perform on other's land or others can perform on your land"?"

No. You are wrong. I'm honestly glad you asked, though.

All easements refer to land and to the actions that the people affected can or cannot perform on them. The different terms identify (1) who is affected, (2) who benefits or is burdened, and (3) what the nature of the benefit or burden is.

For an explanation of what these terms refer to, please see my discussion post immediately below ("@SafeTex/Adrian: POSITIVE NEGATIVE").
Eliza Hall Jan 23, 2020:
@SafeTex/Adrian: POSITIVE NEGATIVE Neither of you seem to grasp what I've said multiple times: Positive and negative easements are not the same thing as dominant and servient ones.

So, SafeTex, when I say "this is about dominant and servient easements," it does not contradict my previous statement that "this is NOT about positive and negative easements."

Positive and negative easements are BOTH burdens. A positive easement requires Owner A to do something for the benefit of A's neighbor; a negative one requires A to NOT do something, again for the benefit of A's neighbor. In both cases, A is burdened. They are BOTH "servitudes de charge" -- just different types of servitudes de charge.

Example: Owner A is subject to a positive easement ("you MUST let B walk across your yard") and a negative one ("you MUST NOT make any changes to your house that would obstruct B's view of the ocean").

Dominant and servient easements are, respectively, easements providing a benefit [dominant] and ones imposing a burden [servient]. Which is why "servient and dominant easements" = "servitudes en charge et en droit."

If A's land has a DE on it, A gets a benefit. If A's land has a SE on it, A bears a burden.
Germaine Jan 23, 2020:
Il me semble qu'on s'entend tous sur les seuls termes "servitude" (EN) ou "easements". What about a compromise around something like:

"Purchasers will suffer or enjoy any [easement] [servitude] attached to the [property] [immoveable] sold..."

Thus, in principle, successive owners enjoy or suffer any easement attached to the property.
https://www.gascon.ca/en/2019/11/26/perpetual-servitude-reso...
Germaine Jan 23, 2020:
Adrian, Please, would you explain to me:

1. How the acquirer of an immoveable can "suffer" a negative easement?

2. Is the question about comparative law or translation? How can the target-readership modify the translation of these legal terms? Will your translation of "igname" be "potato" cause the reader is British and god forgive! he has no clue of what is a yam?

3. It seems that "servitudes en droit et en charge" is a Swiss expression. Why should UK's HM Land Registry be THE reference?

About the US/Can English v. BrE, you might be reasssured that:
Pronunciation is the most striking difference between British English and the English in the U.S. and Canada, but there are also a number of differences in vocabulary and spelling, as well as slight differences in grammar. Yet on the whole, speakers of American, Canadian and British English have little or no difficulty understanding each other.
https://www.ryerson.ca/content/dam/studentlearningsupport/re...

En passant, vous me pardonnerez, mais il me semble que certaines "reliable" transatlantic sources pourraient être plus fiables que le Grand Adrian...
Adrian MM. Jan 22, 2020:
@ SafeTex - servant and dominatrix next.... Pls. forget the US/Can. ENG-only ideas of 'servient & dominant easements' for BrE – including Scots law - purposes. As Allegro comments, it is for the asker to cogitate over the target-readership.

After studying ENG land law at Uni. in the UK half a century ago, I clocked up 40 years of *practical conveyancing* experience in the City of London & Paris, inter alia, and those terms had never been used, esp. on Land or Charge Certificates issued by the UK’s HM Land Registry.

I suppose, next, we are going to be dished up a 'servant' of a 'dominatrix' of 'multi-use' / polyvalent land with 'reliable' Transatlantic sources quoted for the purpose.
SafeTex Jan 22, 2020:
@ all Hello

Am I right in now thinking that the "servient and dominant easements" refer to the land, and the positive and negative easements refer to the actions that you can perform on other's land or others can perform on your land"?

If so, doesn't the structure of the original question, "Les acquéreurs souffriront et exerceront..." give us the answer?

You can't "bear and exercise" land itself but you can bear the actions of others and exercise your own rights as actions (negative and positive easements)

Or have I misunderstood the debate?

Regards

SafeTex
Germaine Jan 22, 2020:
Adrian, You're sure?

Dominant tenant – tenant de fonds dominant
(contexte) An easement owner is the "dominant tenant".
Words and Phrases, Permanent Ed., 1940, vol. 13, (suppl. 1950), p. 66.
PAJLO, Dictionnaire canadien de la common law : Droit des biens… 1997, p. 190.

Servient tenant – tenant de fonds servant
(contexte) An easement is an incorporeal hereditament and is a privilege without a profit. Thus when A, the owner of a piece of land, has the right of compelling B, the owner of an adjoining piece of land, either to refrain from foing doing something on his (B's) land; or to allow A to do something on his (B's) land, then A is said to have an easement over B's land: A is called the dominant owner, and his land the dominant tenement; B is called the servient tenant, and his land the servient tenement.
Jowitt's Dictionary of English Law, 2e éd., 1977, p. 552.
PAJLO, Dictionnaire canadien de la common law : Droit des biens…

Tenant (of land)
(contexte) Strictly speaking, a tenant is a person who holds land ((...)).
Cartwright, J. M., Glossary of Real Estate Law, Rochester (N. Y.)…
Jowitt's Dictionary of English Law…
http://www.juriterm.ca/
AllegroTrans Jan 22, 2020:
@ Adrian @ Safe Tex Voila. Servient and dominant are words describing tenements (land) in relation tio a specific servitude. Positive (giving a right or benefit) and negative (imposing a burden) are words relating to servitudes in general
Adrian MM. Jan 22, 2020:
'dominant vs. servient tenant' - ha. ha, ha! There are no such parties either in US Am, Canadian or English Common Law. FWIW, these terms Google as dominant and servient tenements, plus Barron's US Am. law dictionary refers to dominant and servient estates and neither to easements nor the parties. They are, as Allegro intimates, the party burdened and the party benefit(t)ed.
SafeTex Jan 22, 2020:
@ Eliza So now you are saying:

"I agree: a servitude en droit is one that gives Landowner A a right or benefit (with respect to Landowner B's property), while a servitude en charge is one that imposes a burden on Landlowner A"

and

"So when you're buying land and you agree to exercer les servitudes en droit and souffrir les servitudes en charge that come with that land, you're agreeing to exercise the dominant easements and submit to the servient easements."

whereas BEFORE you said that:

"This ISN'T about negative/positive (a.k.a. affirmative) easements. Those both relate to something you (owner of the property subject to the easement) have to do:"

Come on. It's the same every time with you.
Eliza Hall Jan 22, 2020:
@ Germaine & AllegroTrans Thank you, Germaine.

AllegroTrans, I agree: a servitude en droit is one that gives Landowner A a right or benefit (with respect to Landowner B's land: e.g., A's right to walk across B's land), while a servitude en charge imposes a burden on Landowner A (e.g., A has to let B walk across A's land).

That's what dominant and servient easements are. A dominant easement gives you a right or benefit (relating to someone else's land, e.g., the right to walk across it). A servient easement imposes a burden on you (by giving someone else rights relating to your land).

If Landowner A has a servitude en droit, then Landowner A is the dominant tenant with respect to that servitude. B is the servient tenant.

If Landowner A has a servitude en charge, then Landowner A is the servient tenant with respect to that servitude. B is the dominant tenant.

So when you're buying land and you agree to exercer les servitudes en droit and souffrir les servitudes en charge that come with that land, you're agreeing to exercise the dominant easements and submit to the servient easements.
Germaine Jan 22, 2020:
Les États-Unis ont le même régime de droit: la common law (si je me souviens bien, seule la Louisiane est civiliste). So, it makes no difference at all. If asker wants European English and a fair translation, she should perhaps favour/favor Eliza's answer 1. Adrian's answer doesn't apply here, as this is not about easements only benefiting a dominant estate. Please, read the reference.
Germaine Jan 21, 2020:
Et c’est exactement ce que laisse entendre la proposition d’Éliza « servient and dominant easements ».

Les acquéreurs de la propriété A souffrent les servitudes en charge - donc, les servitudes qui constituent une charge/grèvent la propriété A (i.e. dont A est le « fonds servant/servient estate ») - et exploitent les servitudes en droit – donc, les servitudes qui constituent un droit qui grève une propriété B (C, D,…) au profit de la propriété A (qui est alors le « fonds dominant/dominant estate »).

Je ne crois pas qu'il faille chercher plus loin. En tout cas, à lire différents textes, je ne vois vraiment pas qu'on parle ici d’un « legal easement (at law) » (le pendant serait alors un « equitable easement »), d’un « legal easement (by law) » (le pendant serait alors un « voluntary easement ») et encore moins d’un « statutory easement » - cf. http://www.juriterm.ca/.
AllegroTrans Jan 21, 2020:
"en droit" = giving one a right or benefit
AllegroTrans Jan 21, 2020:
"en charge" = burdensome, onerous, benefitting someone elase
Adrian MM. Jan 19, 2020:
@ E. Hall Well, thanks for putting me on the right negative/postive track any road!
Eliza Hall Jan 19, 2020:
@Adrian You wrote: "You seem to be conflating dominant and servient tenements with positive and negative easements"

You seem to be having a reading comprehension problem. Am not going to repeat what I've already said; you can scroll down. Do let me know when you've read the link that shows you're wrong about positive and negative easements. I've posted it twice already, to no response from you. *shrug*
Adrian MM. Jan 18, 2020:
@ Eliza > tenements vs. easements You seem to be conflating dominant and servient tenements with positive and negative easements. The latter are not dominant and servient, but positive and negative, depending which tenement (estate in the US/ piece of land) is burdened (en charge e.g. by local land charge) or benefit(t)ed. You yourself have contradicted your own answer:

'The EN terms used to distinguish servitudes en charge/en droit are dominant and servient. The dominant estate is Neighbor A who has the right to do something on Neighbor B's land (which is called the servient estate): '
Eliza Hall Jan 18, 2020:
@ Adrian This isn't about negative/positive (a.k.a. affirmative) easements. Those both relate to something you (owner of the property subject to the easement) have to do:

Positive (affirmative) easement- e.g. you have to let your neighbor drive across your property to reach theirs;

Negative easement - e.g. you have to let your neighbor continue to have an ocean view, which means you're not allowed to do work that would increase the height of your home. https://iconlegal.com.au/2017/01/23/understanding-positive-n...

Since everyone here utterly failed to follow the clues I provided, I was finally FORCED to provide the answer myself (see below). You may address payment to me via Paypal :)
Eliza Hall Jan 18, 2020:
Another clue Enjoy this article, which says that when buying real estate in Switzerland, "Il faut dans tous les cas demander un extrait du Registre Foncier et voir les servitudes en charge, notée (C) sur le feuillet. Par exemple une servitude en charge de vue en faveur du voisin peut ruiner le rêve de surélévation de l’immeuble."
https://www.bilan.ch/opinions/fabrice-strobino/achetez-les-y...

I do want to take a moment to acknowledge that SafeTex had the decency to remove his clearly incorrect proposed translation. Thanks, SafeTex.
Eliza Hall Jan 18, 2020:
@SafeTex "Servitudes and easements" is not fine, because an easement is a type of servitude, for god's sake ("In the United States there are three basic types of servitudes: easements, covenants, and profits" - https://www.britannica.com/topic/servitude-property-law).

What you're proposing would make about as much sense as saying, "This restaurant serves both food and sandwiches." And no, the sentence structure makes no difference to the fact that "duly and legally" is not remotely a correct translation of the source text.
SafeTex Jan 18, 2020:
@ Germaine Servitudes and easements is fine. Why not put it up?
Regards
SafeTex
Germaine Jan 18, 2020:
Eren Kutlu Carni, Les acquéreurs souffriront et exerceront les servitudes en charge et en droit =
Les acquéreurs souffriront les servitudes en charge et exerceront les servitudes en droit

servitudes en charge: charges (up)on land, servitude - Termium
servitudes en droit: legal easement (at law) - Juriterm

…created a real charge or servitude upon l'île du Milieu… That the servitude consisted in suffering inroads from the cattle of the Common…
http://canlii.ca/t/g7xr6

En passant, les "servitudes en charge" comme les "servitudes en droit" (qui ne sont pas identifiées dans la question) regroupent bien plus que les simples "droits de passage".

Connaître le pays d'origine du texte pourrait aider à raffiner les recherches.
SafeTex Jan 18, 2020:
@Eliza The structure of the two sentences (the question and your reference) are entirely different.

The owners have certain rights (right of passage) and obligations (to grant passage).

In the asker's question, this is made clear by the verbs "souffriront et exerceront" which they therefore can/must "duly and legally" both benefit from (can) and respect (must).

In your sentence, "duly and legally" does not work simply because of the grammatical structure and so I agree would need a different solution.

But although your reference is interesting, it is NOT the sentence we are trying to solve here.

That is my take on it (with a low level of certainty) but I should have pointed this out in more detail, namely that the verbs indicate the type of servitude.

So what are you proposing instead besides your normal psycho-rigid obsession to disagree and lecture other? What is your answer for THIS question?
Eliza Hall Jan 18, 2020:
SafeTex: incorrect. Here's your clue. Google this phrase exactly as written:
"servitude en charge" PR-1224 - Ville de Genève

Then click on what should be the first result, which is entitled PR-1224 - Ville de Genève. It will bring up a PDF of a Swiss administrative document. On page 12, it refers to removing from a property any "servitude en charge ou en droit."

These are two different kinds of legal servitudes on property. That's why it's possible to say "en charge OU en droit." It's not just a semi-meaningless legalism like "duly and legally."

Proposed translations

-3
13 hrs

in charge and in law

Peer comment(s):
disagree Eliza Hall : That doesn't mean anything in EN legalese (or everyday EN).
1 hr
disagree AllegroTrans : You can't simply translate legal phrases like this on a word by word basis; what you have suggested means nothing and you are clearly out of your depth
2 hrs
disagree Yvonne Gallagher : with other comments
28 days
Something went wrong...
15 hrs

servient easements and dominant easements (or see below)

All right all right all right. By popular demand I will at last provide an answer :)

Two alternatives, au choix:
1. servient easements and dominant easements
2. as the dominant and servient estate

This is not about easements created by covenants vs. easements created by statutes. It's also not about negative vs. positive (a.k.a. affirmative) easements (see my @Adrian post in the discussion for why).

This is about whether the easement forces you to let your neighbor do something on or relating to your property (servitude en charge), or allows you to do something on or relating to your neighbor's property (servitude en droit).

Quote from a Swiss municipal meeting report:

"...l’exemple du cas où l’on s’entend avec son voisin pour construire à proximité d’une limite de propriété : on fait établir une servitude en droit, pour pouvoir occuper le terrain du voisin, qui lui, en charge, l’empêche de construire.

Si la canalisation passe par le terrain du voisin, c’est une servitude qu’il a lui en droit et le voisin en charge."

No direct link because it's a PDF; it was the first result on Google when I searched this term: "servitude en droit" passage suisse
It's entitled "Procès-verbal de la séance du Conseil municipal
du lundi 17 juin 2013" and is from the Ville du Grand-Saconnex.

The EN terms used to distinguish servitudes en charge/en droit are dominant and servient. The dominant estate is Neighbor A who has the right to do something on Neighbor B's land (which is called the servient estate): https://en.wikipedia.org/wiki/Easement#Dominant_and_servient...

--------------------------------------------------
Note added at 15 hrs (2020-01-18 22:06:32 GMT)
--------------------------------------------------

NOTICE to Adrian and SafeTex (and Eren): I will interpret your "agrees" as meaning "Not only are you right, Ms. Hall, but YOU RULE."
Hahahahahahaha! Omg I crack myself up.
Peer comment(s):
disagree Adrian MM. : I originally thought of that facile distinction//You are mixing up with dominant & servient (UK) tenements and (US) estates - pieces of land.
5 mins
disagree SafeTex : See Adrian's remarks. Looks like PayPal is a dead duck judging by all the disagrees. Hahahahahahaha!
3 hrs
disagree AllegroTrans : So why is servient easement not "fonds servant"?
3 hrs
Fonds servant = servient estate, not servient easement. PS: You may own a servient estate, but you can't suffer/souffrir one; what you're suffering, as the owner, is the servient easement.
agree Germaine : with "dominant and servient easements". La plus fidèle traduction, à mon avis. https://casetext.com/case/csmc-2007-c1-old-country-office-ll...
22 hrs
Merci.
agree writeaway : Agree with Germaine.
5 days
Merci.
agree Yvonne Gallagher : also agree with Germaine (but no need for the superfluous comments)
28 days
Something went wrong...
16 hrs
French term (edited): les servitudes (CH) en charge et en droit

negative and positive easements (Scots law) servitudes

I have now decided to post my original idea of an easement burdening and with the benefit of the droit - entitlement.

Serviient and dominant refer, again, to the tenements (ENG law) or estates (US Am. law).
Example sentence:

USA: NORTH CAROLINA LAW REVIEWVolume 29|Number 4Article 96-1-1951Easements -- Creation by Covenant in Deed William C. Morris Jr.

L'inscription d'une servitude d'usage exclusif ou d'un bail annoté au Registre foncier en faveur de la Ville de Genève en charge des futurs DDPs octroyés à la FVGLS, sur une partie des niveaux 0 et 1, en vue de la réalisation d'une partie des équipe

Reference:

http://fiches-droit.com/servitude

Peer comment(s):
disagree Eliza Hall : INCORRECT. See (again) the link, and (if the link is somehow unclear) the discussion for an explanation: https://iconlegal.com.au/2017/01/23/understanding-positive-n... Your comment re "tenement" changes nothing: pos/neg easement IS WRONG.
10 mins
Yes. I've read your link - have you? 'In this example, Avery’s land is getting some benefit from the easement and this makes it the Dominant *Tenement*. Brian’s land, which is serving a purpose for Avery, is known as the Servient *Tenement*.'
agree SafeTex
1 hr
Thanks for the support. Having studied (maddening) ENG land law near-half a century ago - before some translators & interpreters had even been born, I thought I had clinched most of the archaic terminology.
agree AllegroTrans : Yes but I don't see the need to refer to Scots law
2 hrs
Thanks. Scots law has been cited only to show that 'servitude' is commoner North of the Border, plus someone has to 'bang the Scottish drum' that often beats a familiar Roman civil-law rhythm..
disagree Germaine : Eliza is right: both easements benefit the dominant owner who "suffers" nothing since he has rights over the servient tenement or restrains the servient owner. // Really? We don't read the same sources...
20 hrs
he or she, if you don't mind - and the analysis is misguided as there is neither a double benefit to any party, nor is there a 'servient owner' - only the tenement or estate (land) can be.// I worked 40 years in BrE & FRE conveyancing.
Something went wrong...
+1
13 days

all easements encumbering or benefiting the property

I'm really sorry if anyone else has posted this in the discussion but I couldn't read everything.
All the other contributors have posted correct definitions of negative/affirmative easements and dominant/servient estates but I'm not sure that's exactly the point here. I think your specific sentence simply means that the property will be transferred to the buyers along with "all easements encumbering or benefiting it".
I hope this turn of phrase helps.
Peer comment(s):
agree Emiliano Pantoja
17 days
Something went wrong...

Reference comments

1 day 12 hrs
Reference:

Positive and negative easements

Positive easement
SYNONYMES: affirmative easement
An easement is positive when it entitles the dominant owner to make active use of the servient tenement, or to do some act which, in the absence of an easement, would be a nuisance or a trespass. Examples of positive easements are rights of way, the right to lead or discharge water over or on a neighbour's land, and the right to use or affect the water of a natural stream in a manner not justified by natural right.
Jowitt's Dict. of Eng. Law, 2e éd., vol. 1, p. 676.

ÉQUIVALENT 1: servitude positive
CONSTAT 1: servitude active
SOURCE: Kinder, P., et McCraken, S., Connaissance du droit : Systèmes judiciaires, principes et terminologie juridiques, Paris, L.G.D.J., 1980, p. 762.
CONSTAT 2: servitude positive
SOURCES: PAJLO, Dictionnaire canadien de la common law… Vanderlinden, Jacques, Gérard Snow et Donald Poirier, La common law de A à Z…

(contexte) Parmi les servitudes, les unes sont positives, donnant au grevant le droit d’exploiter activement le fonds servant (telles les servitudes d’eau et d’appui), les autres sont négatives, restreignant la liberté d’action du grevé (telle la servitude d’éclairement).
Vanderlinden, Jacques, Gérard Snow et Donald Poirier, La common law de A à Z, 2e édition, Cowansville (Québec), Yvon Blais, 2017, s.v. servitude.

ÉTUDES COMPARATIVE (DOMAINES CONNEXES)
servitude positive. - Servitude qui permet au propriétaire du fonds dominant de poser des actes déterminés sur le fonds servant. e.g. servitude de passage. - Martineau, Les biens, 4e éd., p. 167, sec. 3, no 1.
servitude active. - Servitude envisagée par rapport au fonds dominant. Rem. La servitude active constitue un droit et non une charge, par ex., le droit de passage résultant d'une servitude. - Crépeau, Dictionnaire de droit privé , 1985, p. 173

Negative easement
An easement is negative when it merely restrains the servient owner from exercising an ordinary right of ownership over his land; such are the rights of light and air and the acquired right of support.
Jowitt's Dict. of Eng. Law, 2e éd., vol. 1, p. 676.

(note) distinguer de "negative servitude".
C.L.E.F., Voc. bilingue de la Common Law: Droit des biens, tome I, 1986, p. 193.

ÉQUIVALENT 1: servitude négative
SOURCES: Vanderlinden, Jacques, Gérard Snow et Donald Poirier, La common law de A à Z… PAJLO…
CONSTAT 3: servitude passive
SOURCES: Ontario (Province), Lexique anglais-français du droit en Ontario… Kinder, P., et McCraken, S., Connaissance du droit : Systèmes judiciaires, principes et terminologie juridiques, Paris, L.G.D.J., 1980, p. 762.

ÉTUDES COMPARATIVE (DOMAINES CONNEXES)
servitude passive. - Servitude envisagée par rapport au fonds servant. Rem. La servitude passive constitue une charge et non un droit, par ex., la servitude de passage grevant le fonds servant. - Crépeau, Dict. de droit privé, 1985, p. 175.

servitude négative. - ((Servitude qui)) défend au propriétaire du fonds servant de faire quelque chose qu'il aurait le droit de faire selon le droit commun i.e. si la servitude n'existait pas e.g. servitude de non construction; servitude de ne pas construire à plus qu'une hauteur déterminée; servitude de ne pas construire à moins de telle distance de la ligne de division. - Martineau, Les biens, 4e éd., p. 167, sec. 3, no 2.
Reference:

http://www.juriterm.ca/

Peer comments on this reference comment:
agree Eliza Hall : Great references. Yes, positive/negative easement is flatly incorrect as a translation here. Sorry, Adrian.
22 hrs
agree writeaway
4 days
neutral Adrian MM. : These references go to support my own answer.
5 days
agree AllegroTrans : Agree with AMM - these actually support his answer
7 days
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