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Part Two of the series “Practical Guide to the Lebanese Code of Real Property”, covering Articles 56 to 90 of Decree No. 3339 of 12 November 1930 (Book III — Of Easements): the definition of easements and their three sources, natural easements (water-flow rules), legal easements of public and private utility (views, windows, party walls, distances, plantations, right of way, water and drainage rights), conventional easements, conditions of exercise, and extinction by cancellation of the inscription.

Arabic original: الارتفاقات العقارية في القانون اللبناني — الجزء الثاني من الدليل العملي لقانون الملكية العقارية.

French version: Les servitudes immobilières en droit libanais — Deuxième partie du Guide pratique du Code de la propriété foncière.

Introduction

In Part One of this series we set out the definition of real property, its three categories, the five Ottoman-derived land types and the twelve real rights that may be exercised on Lebanese immovables, with particular attention to ownership, tasarrouf, indivision, superficies and usufruct (Articles 1 to 55 of the Lebanese Code of Real Property — Decree No. 3339 of 12 November 1930, hereafter the CRP). The easement is the sixth of the twelve real rights enumerated by Article 10 of the CRP: a perpetual real right that establishes a charge on one immovable for the benefit of another immovable.

This Part covers Book III of the CRP — Articles 56 to 90 — distributed across five chapters. Not one of these 35 articles has been amended or repealed since the Decree came into force in 1930. This textual stability, exceptional in the Lebanese legislative landscape, means that the rules applied by the courts today are rigorously those of the 1930 text. A substantial body of case law has accumulated around these provisions over close to a century, particularly on the right of way and on the rules governing views and windows; it is integrated into the analysis that follows where it carries the operational point.

Scope of this Part: Articles 56 to 90 of the CRP, organised as follows:

• Articles 56 to 58: definition of the easement, its three sources, and the special publication regime;
• Articles 59 to 61: Chapter I — natural easements (flow of water between higher and lower lands);
• Articles 62 to 83: Chapter II — legal easements, in two sections: easements of public utility, then easements of private utility (where the rules of frequent application are found: views, windows, party walls, distances, plantations, right of way, water rights);
• Article 84: Chapter III — easements established by the act of man (conventional easements);
• Articles 85 to 89: Chapter IV — conditions of exercise of easements;
• Article 90: Chapter V — extinction of the easement by cancellation of the inscription.

Note on the Sulh courts. The original 1930 drafting refers, in several provisions of Book III, to the judge of the Sulh court of the district as the authority with jurisdiction over disputes concerning easements. The Sulh magistracy has been abolished in the Lebanese judicial organisation, and competence today rests with the single-judge civil court under Article 86 of the Lebanese Code of Civil Procedure (LCCP), which expressly confers on it the connaissance of easement litigation. The substantive obligations imposed on the judge by the CRP — first among them the obligation to conciliate the competing interests (Article 60 § 5 and Article 83) — remain fully applicable and bind the single-judge civil court today.

I. Definition of the easement and its three sources

Definition

Article 56 of the CRP defines the easement as a charge imposed on a specified immovable for the benefit of another specified immovable owned by a person other than the owner of the first, the charge consisting either in conferring on a third party the right to perform acts of usage on the burdened immovable, or in depriving its owner of the exercise of part of his rights.

Three elements emerge. First, the easement is a relationship between two parcels — the dominant tenement, for whose benefit the charge is constituted, and the servient tenement, which bears its weight — and not between two persons. The practical consequence, consistently held by the Court of Cassation, is that the easement transmits automatically with the land on a sale, gift or transfer by succession; it need not be repeated in each subsequent transfer deed. Second, if the two immovables are reunited in one patrimony, the easement is extinguished by operation of law through merger, even where the physical arrangement remains unchanged. Third, the charge has two possible modalities: either an active right for the dominant owner (right of way, right to draw water, right of view, right to drain water), or a restriction on the servient owner (prohibition on erecting a construction that would block the view or sever the passage).

The three sources of the easement

Article 57 limits the sources of the easement to three:

• the natural situation of the premises: the easement arises from the configuration of the ground itself (slope, natural watercourse, difference in elevation) and is established automatically, without any title or inscription;
• charges imposed by the law: the legislator itself creates easements for considerations of public utility (access to the seashore, public works, military installations) or of private utility (views, distances, party walls, right of way for the enclaved parcel);
• agreements between owners: neighbours may, by contract, establish between their parcels an easement of their own creation (a conventional right of way, a right of view, a right to draw water). This third category is the subject of Article 84.

The distinction between the three sources is fundamental because it commands, on the one hand, the regime of publication on the Land Registry (Article 58) and, on the other, the applicability of prescription as a mode of acquisition or extinction (regime treated in Part Five of this series).

The exemption from publication on the Land Registry

By way of derogation from the principle stated in Article 10 of Decree No. 188 of 15 March 1926 establishing the Land Registry — under which no real right produces legal effect before its inscription — easements that result from (i) the natural situation of the premises and (ii) charges imposed by the law are exempt from publication (Article 58). Conventional easements (Article 84), by contrast, remain subject to the general rule of inscription on the Land Registry for opposability to third parties.

The second paragraph of Article 58 adds a particular rule for the right of way: the owner of the dominant tenement (the enclaved parcel that benefits from the passage) may request the precise delimitation of the route, which is then inscribed on the Land Registry with its coordinates. It is settled doctrine that the exemption from publication enjoyed by natural and legal easements assimilates them, for the purposes of prescription, to inscribed rights: the extinctive prescription of Article 19 of Decree No. 188 does not run against them.

II. Natural easements

The natural flow of water

The founding rule of Chapter I is the following: the lower parcels (the lower-lying lands) are subject to the higher parcels for the purpose of receiving the water that flows from them naturally, without any contribution by the hand of man. Article 59 draws two symmetrical obligations from this:

• the owner of the lower parcel may not erect a dike that would impede this flow;
• the owner of the higher parcel may not, through his works, aggravate the burden on the lower parcel (by concentrating the water, channelling it, or directing it to a narrower outlet).

Rain water, spring water, water released by drilling

Article 60 details the regime by category of water:

• Rain water: every owner may use and dispose of it on his own parcel. If, however, this use or diversion aggravates the natural easement, an indemnity is owed to the lower parcel.
• Spring water: same regime as rain water.
• Water released by drilling or deep excavation: the lower parcels are bound to receive it, but are entitled to an indemnity for any resulting harm.
• Built-area carve-out: the houses, courtyards, orchards, gardens and enclosed grounds attached to dwellings are not subject to any aggravation of the easement of water flow.

The fifth paragraph of Article 60 confers jurisdiction over the contentions arising from the creation or exercise of the natural easement — including the determination of indemnities — on the single-judge civil court (per the introductory note above), under the substantive obligation to conciliate the requirements of agriculture and industry with the respect due to the right of property.

The right to enclose

Every owner may enclose his parcel, except where the enclosure obstructs the exercise of an easement established for the benefit of a neighbouring parcel (Article 61). This reads together with Article 70 (party wall) and the rules on windows (Articles 66 to 69). The Court of Cassation has consistently held that, if the Land Registry inscriptions do not mention an easement of openings on the neighbouring parcel, the owner of that parcel may enclose his ground even where the enclosure has the effect of blocking the existing windows.

III. Legal easements of public utility

Article 62 divides legal easements into two categories: those established for public utility and those established for private utility.

As regards easements of public utility, Article 63 proceeds by reference: it submits them to special laws and regulations. The CRP lays down no substantive rules; it refers to specialised texts governing in particular access to the seashore and to the banks of watercourses (maritime and fluvial public domain), the construction, maintenance and use of public roads and works (road and urban-planning legislation), and military installations, both terrestrial and maritime (defence legislation and military regulations). The detailed treatment of these easements falls principally under the legislation on expropriation for public utility (the subject of a separate series), the legislation on the maritime public domain, and that on roads and urban planning.

IV. Legal easements of private utility

Chapter II, section II, is the section most densely applied in practice in relations between neighbours. It addresses six matters: the drainage of rain water, harmful works in the neighbourhood, distances and views, the party wall, plantations, the right of way, and water rights for irrigation and drainage.

Discharge of rain water

Every owner must construct his roofs so that the rain water flows onto his own parcel or onto the public way (Article 64); he may not direct it onto the neighbouring parcel. The carve-out lies in the application of the particular regulations on roads.

Works harmful to the neighbourhood

Every owner who undertakes works liable to occasion harm to neighbouring parcels — such as excavations, soundings, deep diggings, or the installation of dangerous, inconvenient or unhealthy stockpiles — must comply with the local regulation that fixes (Article 65):

1. the distance to be respected between the works and the neighbouring parcels;
2. the enclosures or barriers to be interposed between them.

Article 65 is supple in its drafting because it refers to the “local regulation” (which varies by site and by type of works), but its pivot is the developer’s liability towards the neighbour for any harm arising from a failure to comply.

Distances and views

#### Direct views, windows and balconies

Article 66 prohibits the owner from having:

• a direct view (vue droite);
• windows;
• balconies;
• or any other projection;

opening onto the enclosed or unenclosed parcel of the neighbour, unless a distance of two metres separates the wall in which the view is opened from the neighbouring parcel.

If the distance of two metres is not respected, only lights (jours) are admitted, at a determined height:

• two metres fifty from the floor of the room on the ground floor;
• one metre ninety from the floor of the room on the upper floor.

It is settled in the case law of the Court of Cassation that three practical rules govern the application of Article 66:

1. The two-metre distance applies only where a window is opened or a view created. An owner who builds without opening any view onto the neighbour is not bound to observe the setback.
2. Roofs and boundary walls are not subject to Article 66: the prohibition aims at constructions intended for work and habitation, not at separating walls.
3. Windows opened before 1930 (under the Ottoman Mejelle) constitute a vested right that the later Decree could not extinguish. Windows opened after 1930 on a delimited parcel must by contrast be inscribed on the Land Registry or asserted within the two-year period from the homologation of the delimitation and registration minutes (Article 31 of Decree No. 186 of 15 March 1926), failing which the right is forfeit.

#### Oblique views

The owner may have an oblique view (vue oblique) onto the neighbouring parcel only where a distance of half a metre separates the wall in which the view is opened from the neighbouring parcel (Article 67).

#### Carve-out for roofs and windows giving onto the public way

The prohibitions of Articles 66 and 67 do not apply (Article 68) to:

• roofs;
• windows giving onto the public way.

The case law has specified that the carve-out for windows opening onto the public way applies even where the way separating the two parcels is very narrow, and even where it is intended only for water drainage. What matters is the existence of a public space between the two parcels, regardless of its width or function.

#### Rules of measurement

The distance of two metres (for the direct view) and of fifty centimetres (for the oblique view) is measured from the outer face of the wall in which the windows are opened. For balconies and other projections, the measurement is taken from their outer line to the boundary line of the two parcels (Article 69).

The party wall

#### Prohibition on building on the party wall without the co-owner’s consent

The co-owner of a party wall may neither raise it nor lean a construction against it without the consent of his co-owner (Article 70). He may, however, on the side of his own parcel, place beams, works or constructions on the wall or lean buildings against it, up to one half of the load that the wall can bear.

#### Renunciation and acquisition of party-wall co-ownership

No one may be compelled to cede to his neighbour his share in the party wall (Article 71). However, where one co-owner has raised the wall with the consent of the other, the co-owner who did not contribute to the costs retains the right to acquire later the party-wall status of the raised portion, on two conditions:

1. payment of half the cost of the raising;
2. payment, where applicable, of half the value of the ground used to thicken the wall.

Charges of multi-storey buildings

Article 72 lays down, in its original 1930 drafting, the rules for the apportionment of maintenance and repair charges between the owners of different storeys of one and the same building, save stipulation to the contrary in the title deeds:

• the load-bearing walls and the roof: at the charge of all the owners, each in proportion to the value of the storey he owns;
• the floor of the storey on which each one walks: at the charge of the owner of that storey;
• the staircase: at the charge of the owner of the first storey for the staircase that leads to it; at the charge of the owner of the second storey for the staircase that leads to it from the first storey; and so on.

Applied to a multi-storey residential building, the rules of Article 72 enter into concours with Legislative Decree No. 88 of 16 September 1983 on joint ownership of built immovables, which since 1983 constitutes the central framework of co-ownership in this category: sharing of common parts, syndicate of co-owners, quorum and voting, classification of works, resolution of neighbour disputes. Article 79 of Legislative Decree No. 88/1983 governs specifically the apportionment of charges between the owners of storeys that overlaps the field of Article 72 of the CRP. Legislative Decree No. 88/1983 is the subject of Part Eight of this series.

Trees and plantations

Article 73 exempts trees from the distance rules: every owner may, near the boundaries of the neighbouring parcel, have trees of any size. The neighbour retains the right to cut the branches that overhang his parcel. It is also permitted to plant trees of any species flush against the separating wall, on both sides, without any required distance, on condition that the plantations do not exceed the top of the wall. Where the wall is not a party wall, only its owner may lean his plantations against it.

The right of way

#### The enclaved parcel and the parcel insufficiently served

The owner whose parcel is enclaved on every side and deprived of access to the public way may claim a right of way over the neighbouring parcels, against an indemnity proportionate to the harm he may cause (Article 74). The law grants the same right to the owner whose parcel has only an insufficient access for its agricultural or industrial exploitation.

#### The two cumulative conditions of the route

Article 75 lays down two conditions, cumulative and indissociable, for the determination of the route of the passage:

1. the passage must be taken on the side where the distance between the enclaved parcel and the public way is the shortest possible;
2. it must be fixed at the point where its opening causes the least harm to the owner of the parcel on which it will be established.

It is settled doctrine that the trial judges have jurisdiction to fix the route in application of these two conditions, and that the Court of Cassation does not exercise control over the appreciation provided the trial judges have respected the combination.

#### Enclavement arising from a division

If the enclavement results from a division by sale, exchange, partition or any other act, the passage may be claimed only over the parcels that were the object of these operations (Article 76). A person who divides a parcel and encloses one fragment is therefore bound to ensure passage on the other fragments arising from the division. Recourse to Article 74 — that is, charging a passage on neighbouring parcels foreign to the division — is permissible only where the opening of a sufficient passage on the divided parcels is impossible.

Water rights: irrigation, drainage and water intake

#### Right of passage for irrigation water

Every owner who wishes to use, for the irrigation of his parcel, natural or artificial water of which he has the right of disposal, may obtain the passage of this water through the intermediate parcels lying between his parcel and the source, against a prior indemnity (Article 77). The rule secures the conveyance of the water to the dominant parcel but requires an indemnity paid in advance to the owners of the parcels traversed.

#### Right of discharge of water after irrigation

Article 78 completes Article 77: the owner of the irrigated parcel has the right to obtain, against a prior indemnity, the discharge of the post-irrigation water onto the parcels lying downstream.

#### Right to establish a water intake on the bank

Every owner riparian to a watercourse who wishes to use its waters for the irrigation of his parcel may, against a prior indemnity, obtain the authorisation to lean the technical works necessary for the establishment of a water intake against the parcel situated opposite his on the other bank of the watercourse — subject to the particular regulation on water intakes (Article 79).

#### Sharing of the use of the weir

If the owner of the parcel against which the technical works are to be leaned demands to share the use of the weir, he is bound (Article 80):

• to bear half of the construction and maintenance costs;
• to renounce any indemnity for the placement of the weir against his parcel;
• and, if he has already received an indemnity, to refund it.

#### Drainage

Article 81 secures, for every owner who wishes to improve his parcel by drainage of water or by any other process of dewatering, the right to convey this water — underground or on the surface — across the intermediate parcels separating his parcel from a watercourse or drainage ditch, against a just prior indemnity. The houses, courtyards, gardens, orchards and enclosed grounds attached to dwellings are excluded from this easement.

Article 82 authorises the owners of the neighbouring parcels, or of the parcels traversed by the water, to use the works established in application of Article 81 for the drainage of their own parcels, on condition that they bear:

1. a fraction of the construction costs proportionate to the use they make of them;
2. the costs of the modifications necessary for the exercise of this right;
3. the share that falls to them later in the costs of maintenance of the common works.

#### Jurisdiction

Article 83 confers jurisdiction over contentions concerning the creation and exercise of water easements, the determination of the water passage, the works necessary for drainage, indemnities and maintenance costs on the single-judge civil court, under the same obligation to conciliate as that posed by Article 60.

V. Conventional easements

Article 84 governs the conventional easement: owners may establish on their parcels, or in favour of their parcels, such easements as they wish, under two conditions: the easement must burden a parcel for the benefit of a parcel, not a person for the benefit of a person, under penalty of contravening public order; and its use and extent are determined by the act that establishes it, or in the absence of an act, by Articles 85 to 89.

The first condition is the spine of the definition: no easement on a person, no easement for the benefit of a person. If a “right of way” is constituted in favour of a determined person, it is a personal obligation under the law of obligations, not a real right; it does not transmit to the successor of the parcel-owner.

Rule of inscription of the conventional easement on the Land Registry. It is settled doctrine that a structuring practical rule governs the opposability of the conventional easement: the conventional easement is not deemed constituted unless it is inscribed on the real folio of the servient tenement; its inscription on the real folio of the dominant tenement alone does not suffice to render it opposable to third parties. The corollary on a pre-acquisition title search is that counsel must consult the real folio of the servient tenement; the absence of inscription on the folio of the parcel claimed to be burdened releases the acquirer in good faith. The corollary on a constitutive deed is that inscription must be requested on both folios, failing which the right remains theoretical.

VI. Conditions of exercise of the easements

Articles 85 to 89 lay down the substantive rules applicable to the exercise of any easement, whether natural, legal or conventional.

Implicit accessories

A person who establishes an easement tacitly grants what is necessary for its exercise (Article 85). The text illustrates: “the right to draw water from a spring necessarily entails the right of passage over the land in which the spring lies”. The rule is general — a right of way for vehicles tacitly includes the manoeuvring area in front of the gate; a right to a water intake tacitly includes what is necessary for maintenance.

Establishment of works on the servient tenement

The owner of the dominant tenement has the right to establish on the servient tenement all the works necessary for the use and maintenance of the easement — a water channel, a small door, a stairway, and the like (Article 86).

Construction and maintenance costs

The costs of these works are at the charge of the owner of the dominant tenement (Article 87). The rule is logical: the benefit being his, the cost falls on him. The parties may, however, agree contractually on a different apportionment in the constitutive deed.

Division of the dominant tenement

If the dominant tenement is divided, the easement subsists for each of the parcels arising from the division, without the burden on the servient tenement being thereby aggravated (Article 88). The text illustrates by the right of way: all the co-owners are bound to exercise it at the same point — a guarantee against the multiplication of a single easement into as many easements as parcels.

Prohibition of unilateral modification

The owner of the servient tenement may perform no act tending to diminish the use of the easement or to render it more inconvenient (Article 89). In particular, he may not modify the arrangement of the premises, nor displace the easement to a place other than that originally assigned to it.

The second paragraph opens, however, a reciprocal temperament: if the easement, in its original location, becomes more onerous for the owner of the servient tenement, or if it prevents him from carrying out useful improvements, he may offer the owner of the dominant tenement a location as convenient as the first for the exercise of his rights, and the owner of the dominant tenement may not refuse the offer.

The final paragraph obliges, lastly, the holder of the right of exercise to abide by the terms of his title, and prohibits him from performing, either on his own parcel or on the servient tenement, any act of a nature to aggravate the burden on the latter.

VII. Extinction of the easement by cancellation

Article 90 closes Book III by a brief but structuring rule:

The easement is extinguished by its cancellation. The cancellation is effected by the effect of agreements or judgments. The judge may order the cancellation where the easement has become useless or where its execution has become impossible.

The text distinguishes three modes of extinction. Conventional cancellation: the owners of the two tenements agree to terminate the easement; their agreement is submitted to the registrar of the Land Registry, who cancels the inscription. Judicial cancellation founded on a final judgment: the judge orders the cancellation at the conclusion of contentious proceedings; the registrar executes the judgment. Judicial cancellation for disappearance of utility or impossibility of execution: the judge may order the cancellation at the request of any interested party, even in the absence of agreement between the parties, where the applicant establishes that the easement is either without utility (the physical circumstances have changed to such an extent that the easement no longer provides an effective advantage to the dominant tenement) or impossible to execute (it has become materially impossible to put it into practice).

It is settled doctrine that the court appreciates the utility or the disappearance of utility of the easement objectively, in light of the facts and the exhibits produced, independently of the motive or the aim pursued by the plaintiff (for instance, even where the plaintiff’s objective is to deprive a pending pre-emption action of its cause).

Rules of prescription applicable to the easement — practical synthesis

Article 90 combines with the rules of real-estate prescription (treated in detail in Part Five of this series). Three practical rules consolidated by the case law are worth setting down here. First, the easement inscribed on the Land Registry is not extinguished by non-use nor by the effect of prescription, under Article 19 of Decree No. 188 of 15 March 1926. Second, the natural easement and the legal easement (both exempt from publication by Article 58) are assimilated to the inscribed easement for the purpose of non-application of prescription. Third, on delimited parcels (which have been the object of delimitation and registration operations), no one may acquire an easement right by prescription after the expiration of the two-year period from the homologation of the delimitation and registration minutes (Article 31 of Decree No. 186 of 15 March 1926). Before delimitation, or on undelimited parcels, the right may be acquired by acquisitive prescription (fifteen years of peaceful, public and continuous possession).

Jurisdiction over easement disputes

Jurisdiction is distributed according to the phase of the contention.

• During the delimitation and registration operations: the single land judge, whose decisions are final and not subject to appeal, in application of Article 25 of Decree No. 186, where they bear on the right of way.
• In ordinary easement litigation, whatever the source — including water easements, actions for the demolition of windows and balconies, actions to close a view, and actions to enforce constitutive deeds of conventional easements: the single-judge civil court under Article 86 LCCP.
• In matters of urgency (for instance, the imminent harvest of an agricultural season on an enclaved parcel): the summary procedures judge, who may grant a provisional right of way for the purposes of the harvest, without prejudice to the substance of the right.

VIII. Conclusion and outlook for Part Three

This Part has covered Articles 56 to 90 of the CRP, the provisions by which the legislator organises real-property neighbour relations on four fronts: water rights (natural, irrigation and drainage), the rules of views, windows and distances, the party wall and plantations, and the right of way in its different forms. To these are added the rules of exercise of easements and the modes of extinction by cancellation.

The salient points for counsel on a pre-acquisition title search or on the drafting of a deed are the following:

• The conventional easement must be inscribed on the real folios of both tenements — dominant and servient — to be opposable to a third-party acquirer in good faith of the servient tenement. A title search confined to the dominant folio does not protect the acquirer.
• Windows predating 1930 constitute a vested right; windows opened after 1930 on a delimited parcel must by contrast be asserted at the Land Registry within the two-year period from the homologation of the delimitation and registration minutes.
• The inscribed right of way is not extinguished by non-use. By contrast, a person invoking enclavement must demonstrate the material and substantial reality of the enclavement, not merely its verbal assertion.
• The trial judges have the final word in the fixing of the route of the passage, within the framework of the two cumulative conditions of Article 75; cassation review is restricted to verifying that both conditions were applied together.
• The judge may order the cancellation of the easement for the disappearance of utility, objectively appreciated, even in the absence of agreement between the parties.

In Part Three of this series, we move to Book IV of the CRP — the rights of pledge (Articles 91 to 116) — and its two chapters: the vente à réméré and the vente avec faculté d’exploitation (Articles 91 to 100), and the gage immobilier (Articles 101 to 116). These are classical provisions on the recovery of a claim against an immovable, which call for a precise understanding of the distinctions between the vente à réméré (which transfers ownership on a temporary basis) and the gage (which leaves ownership in the debtor’s hands while reserving the creditor a right of retention).

Practical tool: to compute the registration fees for any real-estate transaction (sale, mortgage, mortgage release, constitution of a usufruct), see Lebanese Real Estate Registration Fees Calculator and our complete guide to real-estate registration fees.

Related Posts in This Series

This series covers the Lebanese Code of Real Property in eight parts.

• Part One — Definition of Real Property and Types of Ownership
• Part Two — Real-Property Easements (you are here)
• Part Three — The Immovable Pledge and the Vente à Réméré
• Part Four — Privileges, the Mortgage, and the Forced Sale
• Part Five — Promise of Sale, Right of Pre-emption, and Acquisitive Prescription
• Part Six — The Land Registry
• Part Seven — Land Delimitation and Registration Works
• Part Eight (final) — Condominium Ownership of Built Immovables