By Helen Grange email@example.com
When you’re hunting for a property, it’s important to ask the right questions, and one of them should be: ‘is there a servitude?’
The presence of a servitude can affect the value of a property for both buyers and sellers, as it means that the property owner is unable to exercise his or her entitlement to the property in full capacity, according to Adrian Goslett, regional director and CEO of REMAX.
“A servitude implies that the property does not just serve the owner, but also another property or person. Because of this, the owner’s rights are somewhat diminished. Many buyers are turned off by this, and as a result, a servitude can reduce the demand for a property which in turn can have a negative impact on its perceived value in the market,” he says.
A servitude is defined as a registered right that someone has over the immovable property owned by another person, so a typical example is a panhandle property, where a neighbour has the right to access his property via yours.
Servitudes are divided into two main categories, praedial and personal.
A praedial servitude, found mainly in rural areas, means a person has a right of use of land due to the fact that he is the owner of another property nearby. For example, the farmer A has the right to cross the property of farmer B, or drive his cattle over Farmer B’s land.
A praedial servitude is established in perpetuity, irrespective of who the owner is, and is registered against the title deeds of the two pieces of property.
A personal servitude, on the other hand, favours one specific person and not successive owners, so it terminates when that person dies or moves on. An example would be the right of the owner of a hemmed-in property to use an access road on the neighbouring property, or to grow a vegetable garden on a tract of his neighbour’s land. It is only registered against one deed, that of the servitude holder.
“The servitude holder has priority. This means the owner of the property can exercise all his usual rights of ownership provided it doesn’t impede on the rights of the servitude holder. And while the servitude holder can use the servitude as specified, he must do so in a manner that causes minimal inconvenience to the property owner,” explains Goslett.
Neil Gopal, CEO of the SA Property Owners Association, refers to the book Introduction to the Law of Property (6th edition), which points out that two owners might also have a registered agreement regarding the maintenance of the servitude, eg., farmer B maintains the road to his farm as long as farmer A contributes to the maintenance of the road proportional to his use of the road.
“The buyer would have to establish this, and if an agent is involved, they need to bring this to the attention of the buyer and the seller, so they have the option to continue the agreement,” says Gopal.
Arthur Krumney, principle of Arthouse Properties, says that prospective buyers who are looking at a subdivided property which is the back property of a pan-handle, it’s important to ensure that there is a registered servitude over the front property “so that there is no question later about whether your access will be cut off or changed”.
“If there is no servitude registered, the owner of the property with the access road could change it or build on it, whereas if a servitude is registered, the owner can’t do anything that would infringe the right of access to the property behind,” he says.
Sellers of property with a servitude, meanwhile, are not required to get permission from the servitude holder to sell. However, as Goslett explains, “the new owner of the property will be required to honour the servitude agreement”.
Occasionally a service provider like a municipality or Eskom has a servitude on a piece of land, eg., for the erection of power lines, which limit prevent or limit activities that may affect their operations, eg., no buildings or tall trees within the servitude. This would also affect the selling price.
Shaun Rademeyer, CEO at BetterLife Home Loans, advises buyers to ask their agent about any servitude, and better still, to examine the title deed to ascertain this. “If you are unsure of how to examine the title deed, you need to ask your estate agent or conveyancing attorney to assist you,” he says.
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