Servitudes and types of property (real) servitudes by legislation in Kosovo

AuthorKastriote Vlahna
PositionAssistant of Legal-Civil Courses at the University of Prizren 'Ukshin Hoti
Pages124-134
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l.
6
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o
.
3
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ovem
b
er
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2020
A
cademic Journal o
f
Business,
A
dministration, Law and Social Science
s
II
PCCL Publishin
g
, Graz-
A
ustri
a
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cces online at www.ii
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4
Servitudes and t
y
pes of propert
y
(real) servitudes b
y
legislation in Kosov
o
hD
C.
Kastriote Vlahna
Assistant of Legal-Civil Courses at the University of Prizren
"
Ukshin Hoti
"
Ab
str
a
c
t
This paper will address the topic o
f
servitudes with special emphasis on property servitudes,
always based on the provisions of positive law in the Republic of Kosovo.
S
ince Roman law, the right of ownership over foreign property was unclear especially when
i
t came to servitudes.
I
n Roman law there was not a general category regulated by general
norms, but a set of typical gures of servitudes with common characteristics Despite what was
d
iscussed in Roman law we can say that in all legal systems, there is necessarily a need
f
or the
e
xistence of sub
j
ective real ri
g
hts over one's own thin
g
and over a forei
g
n thin
g
.
I
n
g
eneral,
i
n addition to the property right, there is the fact that there are other legal property rights,
and a er the property right, the right of servitude, otherwise called as a property right over
t
he forei
g
n thin
g
, is considered the most dominant. This ri
g
ht of the sub
j
ect over the forei
g
n
t
hin
g
exists when the holder uses the forei
g
n thin
g
for his own needs or his own thin
g
, in
fact the thing which is owned by another subject. The purpose of this paper is to clarify how
t
he right of servitude is legally de ned by concretizing it in property servitudes. The paper’s
content is related to the right of property servitudes, which speaks extensively about how the
r
ight created by legal work, court decision or even by law, is created, acquired, protected and
e
xtin
g
uished
!
K
e
y
words:
T
he right of servitude, property servitudes, creation-acquisition of servitude,
protection of servitude, termination of servitude.
I
ntr
oduc
t
io
n
I
n rea
l
l
aw, servitu
d
es
h
ave an im
p
ortant
pl
ace an
d
in most cases in t
h
e
l
ega
l
l
iterature
t
he
y
are ranked immediatel
y
a
er the legal institute o
f
ownershi
p
and alwa
y
s be
f
ore
o
ther
p
ro
p
ert
y
rights over
f
oreign objects. The right o
f
servitude is a subjective right
of
absolute character which makes it
p
ossible
f
or its holder to use the
f
oreign thing
f
or
t
he needs o
f
his own thing or to ask the holder o
f
the service
p
ro
p
ert
y
not to use his
o
wn thing due to that there is a right o
f
servitude in
f
avor o
f
the dominant
p
ro
p
ert
y
.
I
n
p
rinci
p
le, the holder o
f
the right o
f
servitude has authorizations to use the
f
oreign
t
hing in a certain volume. Regarding the
p
resentation o
f
the right o
f
servitude in
t
heor
y
there are o
p
inions that the right o
f
servitude is an original right, which is as
a
r
e
s
u
lt
of
th
e
e
x
i
st
e
nc
e
of
th
e
l
e
v
e
l
of
e
c
o
n
o
m
i
c
a
nd c
u
lt
u
r
a
l r
e
l
a
t
io
ns
of
a
c
e
rt
ai
n
e
nvironment and that it has develo
p
ed inde
p
endentl
y
f
rom the right o
f
ownershi
p
.
The literature states that, "the right o
f
servitude is a real right over a
f
oreign thing,
b
ased on which, the authorized
p
erson is allowed a certain use o
f
a
f
oreign thing".
The de
nition o
f
the right o
f
servitude, as an institute o
f
real law, is made b
y
the law
itsel
f
.
I
n Kosovo, the right o
f
servitudes,
p
ro
p
ert
y
servitudes, is regulated b
y
the Law
o
n Basic-Legal-Pro
p
ert
y
Relations, o
f
1980, with articles 49-60. This law regulates
o
nl
y
p
ro
p
ert
y
servitudes, because it is
f
oreseen that
p
ro
p
ert
y
servitudes are more

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