Legal distances in the context of praedial easements

Abstract

This thesis analyses the legislative content and jurisprudential and authoritative interpretation of Section III of Sub-Title I of Title IV of the Civil Code, that is the Section entitled Of Distances Required in Certain Cases. This analysis gives due consideration to the fact that said Section of the Civil Code was enacted back in the 1800s and has never been amended since. Regard is also had to the fact that Civil law countries have now improved the law dealing with the legal distances both with regard to legislative content as well as with regard to classification. Indeed, the introductory chapter of this thesis contrasts the traditional classification of legal distances as legal easements (that is, as contained in our Civil Code) with the modern classification of the same subject matter as legal limitations on the right of ownership. Chapter One explores those provisions dealing with the legal distances required in the case of constructions and works accessory thereto such as the construction of ovens and the distances required in the case of sink-pipes and water pipes. Chapter Two delves into a deep jurisprudential analysis of the distances required in the case of excavations and windows, balconies or similar projections. It is this particular area of the legal distances which has given rise to major litigation and consequently it is this area which contains a number of jurisprudential interpretations. Furthermore, the question whether these distances are absolute or whether a derogation therefrom is admissible, a question which arises at various stages of this study, is dealt with in some detail in this Chapter. Chapter Three deals with the legal distances required in the case of plantations with particular emphasis on the inter-relation of the institutes of prescription and the modes of creation of easements. Furthermore, the legal servitude of co-ownership of cisterns is briefly dealt with. Chapter Four deals with and analyses critically the proposals for reform ofthis area of our Civil Law as recently suggested by the Technical Committee of the Building Industry Consultative Committee. The conclusion of the thesis reverts the focus back to the consideration that the proper classification of the legislative content analysed in this thesis is, generally, under the title of Ownership and, in particular, under a Sub-Title dealing with the Legal Limitations to the Right of Ownership.