Property law is often thought of in terms of ownership—what a person may do with their land, what they may build, how they may use it. Yet, just as crucial are the limits on that ownership, and few legal instruments illustrate this better than servitudes. These are not merely technical encumbrances buried in old deeds; they shape the everyday reality of land use, especially when two parcels of land stand in a legal relationship of benefit and burden. Among the most fundamental distinctions in this field is that between passive and active servitudes—a dichotomy that reflects the difference between toleration and restriction, action and abstention.
At its essence, a servitude is a right enjoyed by one property—known as the dominant tenement—over another, called the servient tenement. But not all servitudes operate in the same manner. An active servitude (or affirmative servitude) is one that entitles the dominant owner to make a specific use of the servient land. This includes, for example, a right of way, where the dominant owner may physically pass over another’s land, or a right of aqueduct, allowing water to be conveyed through the servient property.
In contrast, a passive servitude (or negative servitude) imposes no right of use upon the dominant owner, but instead places a restriction on what the servient owner may do with their own land. These are servitudes of abstention. A common example is a servitude of altius non tollendi, whereby the servient owner is prohibited from building on a certain part of their land, often to preserve a view or prevent overshadowing. In all such case, the dominant owner’s right is not to act, but to prevent action. It is a right to silence, to air, to light—defended not through use, but through restraint.
The distinction matters greatly in law. Notably, in jurisdictions such as Malta, only active servitudes may be acquired through acquisitive prescription—that is, through visible and continuous use over time. Passive servitudes, being rights of restraint rather than action, cannot be acquired by mere toleration or non-use. They require formal title. Furthermore, passive servitudes are often more burdensome for the servient owner, as they limit potential development without conferring any reciprocal use.
Under Maltese law, servitudes are clearly recognised in the Civil Code (Cap. 16). Article 444 defines servitudes as “a burden imposed on tenement for the use and utility of another tenement belonging to a different owner.” Although the Code primarily classifies servitudes into continuous and discontinuous, visible and non-visible, the active/passive divide runs beneath the surface and has clear implications in practice. For instance, while a right of way may be acquired over time through visible passage, under qualified circumstances, a restriction on building requires express agreement or notarial registration.
In an era of increasing land scarcity, high-density development, and neighbour disputes, servitudes—particularly passive ones—have acquired new relevance. They determine not just where people may go, but what they may see, how much light their rooms receive, or whether a skyline remains unobstructed. Yet they also serve as a reminder that ownership is never absolute. Land is not an island. It exists in community, bounded by rights, duties, and expectations that extend beyond fences and walls.
To understand the law of servitudes, then, is to understand the subtle geometry of land relations: when one may act, when one must refrain, and how the law balances these competing interests. Whether one is acquiring land, advising a client, or seeking to enforce a right of way, the passive/active distinction is not a semantic footnote—it is a fundamental guide to what the land, and the law, will allow.
Though published more than a year ago, my book entitled ‘Servitujiet’ may still shed light on the issues at hand.
