The private rural service road: a functional community of use

Abstract

The private rural service road is a customary legal figure, mainly rooted in rural areas throughout the Spanish territory, which refers to a path that crosses privately owned land and is used by the owners of adjacent properties to access their properties or public roads. Unlike a right of way (servidumbre de paso), the serventía does not involve dominant and servient estates; instead, it establishes a common and shared use of the path among the neighboring owners who have ceded part of their land for its creation. Its origin is usually motivated by the topographical configuration of the land and small landholdings, seeking collaboration for the efficient use of the properties. Legally, it is constituted by the voluntary, tacit, or express agreement between the neighboring owners, with the execution of the path being the most significant evidence of said agreement. It is configured as a functional community of use with Germanic characteristics, where the participants have a collective right of use without the assignment of quotas. Its operating regime is based on good faith and the necessity of collective will for the administration and conservation of the path, generally requiring unanimity for its modification or termination. Although not mandatory, registration in the Property Registry grants greater legal certainty. The serventía has specific legal recognition in Galicia, and it is compiled as custom in Asturias, in addition to being recognized jurisprudentially in other autonomous communities such as Canarias, Andalucía, Castilla y León, and Navarra.