When it comes to easements and construction prohibitions, it is sometimes difficult to distinguish between truth and falsehood.
Monaco Court of Appeal has provided some valuable clarification on this topic, analyzing the conditions of existence of height easements restrictions - known as "non altius tollendi" – and the conditions for the extinction and nullity of some restrictions on building height.
In other words, the Court recalls what cannot or can no longer constitute an easement, and thus justify a limitation on building height or a request for demolition.
This outcome was awaited by our Real Estate team, as a building was threatened of demolition. This decision should bring some security to real estate players.
It is of particular significance in the Principality of Monaco, in the context of the rapid urban development that Monaco experienced from the end of the 19th century onwards, which led to the introduction of various height restrictions in notarial deeds.
In the present case, the Court of Appeal overturned the lower court's ruling, pointing out that height easements are extinguished when the servient and dominant lands are united in the same hands, and restrictions are not retroactively re-established upon the successive resale of the land.
The will of parties, at the time of each transfer, must necessarily be analyzed in order to decide whether to create a new height easement or simply a personal obligation, which must necessarily be limited in time, otherwise it will be affected by the defect of perpetuity and therefore null and void.
In fact, a mere reminder of previous height easements by the notary in successive title deeds proves ineffective.
Purchasers, developers and constructors: a legal and chronological analysis of the various deeds of property of both the servient land and the dominant land is essential to ensure their reach prior to any construction project.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
