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Comments on the Law of Servitudes in Israel

Published online by Cambridge University Press:  12 February 2016

Michael Ophir
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Extract

The Land Law, 1969, brought into statutory effect a class of servitudes under the heading of “Easements”. On a first reading of the relevant provisions (sec. 5 and secs. 92–98) it might appear that their import is reasonably clear. Various questions, however, arise as to the meaning and scope of these enactments.

Are the new provisions founded, to a greater or lesser degree, on either the English or American concepts, or has the legislature in Israel endeavoured not only to broaden the scope of servitudes as such, but also to give legal sanction to a new class of servitudes which would not receive recognition either in England or in America? These questions will be considered in the light of the new Law and its relationship to the general approach and legal thinking on the subject in England and the U.S.A.

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Articles
Information
Israel Law Review , Volume 7 , Issue 4 , October 1972 , pp. 528 - 556
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1972

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References

1 23 L.S.I. 283; the full text of the authorized English translation was also published in (1970) 5 Is.L.R. 292.

2 A section of this article draws a comparison between “easements” under the Land Law, 1969, and the Anglo-American concept of easements. In the authorized translation of the Land Law, the term “easement” appears to denote instances which would be referred to in English or American law as “servitudes”. To avoid confusion, the term “servitude” is used throughout this article, except when quoting from the authorized translation or when referring to the actual Anglo-American law of easements.

3 A definition can rarely do more than indicate the fundamental aspects of the subjects to which it relates. Nevertheless, a concise examination is thought desirable here in order to gain a better appreciation of the issues discussed in this article.

4 28 Corpus Juris Secundum 619.

5 Cheshire, , The Modern Law of Real Property (10th ed., 1967) 467Google Scholar. See also Manning v. Wasdale (1836) 5 A. & E. 758.

6 See also Gale, , A Treatise on the Law of Easements (12th ed., 1950)Google Scholar and Megarry, , The Law of Real Property (3rd ed., 1966).Google Scholar

7 See Weisman, J., “The Land Law, 1969: A Critical Analysis” (1970) 5 Is.L.R. 437Google Scholar, 438.

8 This, in fact, is the position in both English and U.S. law.

9 This, with some reservations, is the view of Professor J. Weisman. See “The Land Law, 1969: A Critical Analysis”, op. cit., supra n. 7.

10 These are commonly set out under four headings. For greater clarity the author has made a further sub-division. A comprehensive treatment of the English law of easements is found in Cheshire, op. cit., supra n. 5 at pp. 466–511; Gale on Easements (13th ed., 1959); Megarry, op. cit., supra n. 6.

11 But provided that all the essentials are present the easement may be of a novel kind. See, for example, Simpson v. Godmanchester Corpn. [1896] 1 Ch. 214, 219.

12 Ackroyd v. Smith (1850) 10 C.B. 164, 188.

13 Quasi-easements are not really an exception to this rule since they arise from the ownership of the quasi-dominant land and the quasi-servient land being vested in one person. Under certain conditions, however, these can become true easements on severance of ownership. See Wheeldon v. Burrows (1879) 12 Ch. D. 49 and Lewis v. Meredith [1913] 1 Ch. 579.

14 Ackroyd v. Smith, supra n. 12.

15 Mulliner v. Midland Ry. Co. (1879) L.R. 11 Ch. D. 611.

16 Because these are too indefinite to be capable of acquiring a grant.

17 Harris v. De Pinna (1886) 33 Ch. D. 238.

18 Per Lord St. Leonards in Dyce v. Hay (1852) 1 Macq. 305.

19 For an extensive treatment of the American law of easements reference may be made to 25 American Jurisprudence 2d 416 et seq.; 28 Corpus Juris Secundum 619 et seq.; Tiffany, , The Law of Real Property (3rd ed., 1939) vol. 3, p. 199Google Scholaret seq. and 1971 Cumulative Supplement.

20 Children's Home, Inc. v. State Highway Board 19 ALR 3rd 681. Easements in gross, an exception to this rule, will be discussed later.

21 Cheshire, op. cit., supra n. 5 at p. 476.

22 See Jones v. Price (1965) 2 Q.B. 618.

23 Castner v. Riegel 24 Atl. 484.

24 “…a true easement…cannot involve a duty of active performance on the part of the owner of the…servient tenement” (Tiffany, op. cit., supra n. 19 at para. 771, p. 230).

25 Hoosier Stone Co. v. Malott 29 N.E. 412.

26 Baseball Pub. Co. v. Bruton 18 N.E. 2d 362.

27 Zerbey v. Allan 215 Pa. 383.

28 Pinkum v. Eau Claire 51 N.W. 550.

29 Saratoga State Waters Corpn. v. Pratt 125 N.E. 834.

30 Atlantic Mills v. N.Y. Cent. R. Co. 214 N.Y.S. 123.

31 Guliek v. Hamilton 122 N.E. 537.

32 “…for the benefit of some immovable property…” (sec. 92).

33 Since restrictive covenants, as between successors in title, are not held in gross, they will be considered later.

34 Generally, the successors in title of licensors are not bound, but for an interesting and persuasive view to the contrary see Cheshire, op. cit., supra n. 5 at p. 481.

35 See National Provincial Bank, Ltd. v. Ainsworth [1965] A.C. 1175; [1965] 2 All E.R. 472 and Winter Garden Theatre (London) Ltd. v. Millennium Productions, Ltd. [1948] A.C. 173; [1947] 2 All E.R. 331.

36 Jones (James) & Sons, Ltd. v. Tankerville (Earl) [1909] 2 Ch. 440.

37 For a more detailed exposition on licences with particular reference to the effect of the equitable doctrine of estoppel upon the standing of successors in title of licensors, see Cheshire, op. cit., supra n. 5 at pp. 477–81.

38 See sec. 95 of the Land Law. There is a stronger similarity between (a) servitudes and (b) public rights and covenants between contracting parties. These will come under further consideration in their proper context.

39 Att.-Gen. of S. Nigeria v. Holt [1915] A.C. 599.

40 Miller v. Emcer Products Ltd. [1956] Ch. 304.

41 Dunbar v. O'Brien 58 ALR 1033.

42 (1970) 5 Is.L.R. 437.

43 Megarry, , A Manual of the Law of Real Property (4th ed. 1969), 42Google Scholar.

44 Ibid. pp. 383–407.

45 In fairness, it should be pointed out that the word “some” is not present in the Hebrew text of the Law but appears to have been added in the authorized English translation. This, however, does not detract from the author's view since the word “whole” is noticeably absent from the original text.

46 See also the comments of Professor J. Weisman, op. cit., supra n. 7 at pp. 429, 437.

47 See Professor J. Weisman, op. cit., supra n. 7 at p. 438.

48 Pursuant to secs. 92 and 93 (a) (1) of the Land Law.

49 The possibility that “change of circumstances” or “non-exercise” provisions in sec. 96 may be invoked later would not affect the validity in the meantime.

50 This matter is not only of academic interest. If it is possible that, by virtue of a combination of facts, a servitude in gross can be converted into a servitude for the benefit of land, the provisions of sec. 95 will no longer be relevant to the grant. The servitude in question will then pass with the dominant land despite the fact that the original grant was made to a private individual, class of persons or the public and not to an owner of immovable property.

51 It may be implied that this also extends to a class of persons and to the public.

52 This would constitute a licence in England and the U.S.A.

53 This is a positive servitude in favour of a class of persons and, likewise, would rank as a licence in English and American law provided the class is definite.

54 For example, places of worship, academic institutions, music societies, sports associations and so on.

55 Or unless the legislature intended to limit the application to those persons who were members of the class at the time the servitude was granted: there is no express provision in the new Law to this effect.

56 (1969) 67 P.M. 284. See case notes in (1970) 5 Is.L.R. 474, and further discussion by Gerald M. Adler in (1970) 5 Is.L.R. 580. The decision did not concern servitudes within the Land Law, 1969, and, for this reason, does not fall within the framework of this article.

57 According to Halachic interpretation.

58 If not, its legal validity will be impaired whatever type of servitude this is and whatever the contents of the grant may be.

59 For example, a total restriction on trading in a residential area.

60 For a more detailed exposition on the law relating to restrictive covenants see Cheshire, op. cit., supra n. 5 at 534–55; Megarry, op. cit., supra n. 43 at 397—407; Newson, G. H., Restrictive Covenants Affecting Freehold Land (4th ed. 1967)Google Scholar; Tiffany, op. cit., supra n. 19 at para. 848–75, pp. 441–517 and 1971 Cumulative Supplement.

61 Per Farwell, J. in Rogers v. Hosegood [1900] 2 Ch. 388 at p. 395.

62 See Royal Victoria Pavilion v. Ramsgate [1961] Ch. 581. This, as has been seen, is not the case in Israel where the benefit may be in gross.

63 Zetland v. Driver [1937] Ch. 651.

64 “If the dominant or servient property is partitioned, the easement shall be attached to the parcel for the benefit of which or over which, as the case may be, the easement existed.”

65 Rolls v. Miller (1884) 27 Ch. D. 71.

66 There seems to be no reason why a servitude under the Land Law cannot be for the benefit of a business on immovable property.

67 This is probably less than the degree required to maintain the tort of nuisance. See Bramwell v. Lacy (1879) 10 Ch. D. 691.

68 See Murray v. Dunn [1907] A.C. 283 and National Trust v. Midlands Electricity Board [1952] Ch. 380.

69 In England, emphasis is generally placed on use and enjoyment. Property value there is a doubtful quantity and is usually disregarded.

70 Cook v. Tide Water Associated Oil Co. 281 S.W. 2d 415.

71 See Hancock v. Gumm 107 S.E. 872.

72 “Notice in writing by the owner of the immovable property… to the public…”

73 Depending on whether these applied to an individual, class of persons, the public or land.

74 “From the coming into force of this Law, there shall be no right in immovable property save under an enacted Law.” (sec. 161).

75 Number 10 of the 17th April, 1968, p. 266. There is, as yet, no authorized translation of this Ordinance but the wording of sec. 48 appears to be almost identical with sec. 49 of the Civil Wrongs Ordinance No. 36 of 1944 which is in English and can be found in Legal Studies No. 11 of the Faculty of Law of the Hebrew University by Professor G. Tedeschi and Dr. A. Rosenthal.

76 See sec. 165 of the Land Law.

77 See secs. 48A and 48B Civil Wrongs Ordinance (New Version), 1968.

78 Supra and see sec. 5.

79 The term “occupier” may also include lessees. See sec. 2 of the Civil Wrongs Ordinance (New Version), 1968, where an “occupier” is defined as “… any person lawfully occupying immovable property, or entitled as against the owner to the occupation or use thereof…”

80 An interesting short discourse on the subject of rights in rem and rights in personam is contained in Salmond on Jurisprudence (12th ed., 1966) pp. 235–38. For the English and U.S. law on prescriptive rights in general see Cheshire, op. cit., supra n. 5 at p. 493 et seq.; 25 American Jurisprudence 2d para. 39, p. 452 et seq. As to rights to light in England see B. Anstey and M. Chavasse, The Right to Light (1963). It seems that, in America, the acquisition of rights to light by prescription is generally not possible; see Corpus Juris Secundum para. 19, pp. 674–75.

81 Professor J. Welsman supra, n. 7.

The author is greatly indebted to Professors J. Weisman and S. Ginossar for their helpful and constructive criticisms on the first drafts of this article. The author also wishes to record his thanks to Mr. S. Zmiri, the interesting discussions with whom led to the writing of this article, and last, but by no means least, to Mrs. B. Yoffey for her assistance and encouragement.