Real servitudes: Limitation of liability and risk management for the owner of the servient land

Yes, but not in all circumstances.

The civil liability provisions of the Civil Code of Québec generally apply to the relationship between both parties. However, the peculiarity of the relationship between the owner of the servient land (the person who is subject to the servitude) and the owner of the dominant land (the person who exercises the servitude) lies in the fact that their rights and obligations are often defined in a written instrument, an act of servitude. It is not uncommon for one or more limitation of liability clauses to be included, by consent, in the drafting of an act of servitude.

 Such clauses are generally permissible and valid when included in freely negotiated contracts and when they exclude or limit the debtor's liability for breach of contractual obligations. These clauses may limit liability for material injury, but not for gross negligence on the part of the owner of the servient land, or for bodily or moral injury suffered during the exercise of the servitude by the dominant land.

It may therefore be advisable for the owner of the servient land to take out liability insurance, depending on the use made of the land, in order to protect his or her patrimony and limit the impact of potential legal action.

In short, the act of servitude is an interesting tool to limit the liability of the owner of the servient land towards the owner of the dominant land. Its scope is limited, however, and taking out an insurance policy can improve risk management for the owner of the servient land.