By Sharusha Moodley
A limited real right is a right in an object or a thing of someone else. There are five limited real rights being hypothec, lien, pledge, mortgage, and servitude.
A servitude is a limited real right that one person has over another person’s movable or immovable property.
Praedial servitudes always have two separately owned properties involved and grant some use right, for example, right of way. The use right is registered and vests over one tenement, the servient tenement favouring the other tenement known as the dominant tenement, irrespective of the owner’s identity. Praedial servitudes are restricted to the land and are automatically transferred to the land’s new owners in perpetuity until extinguished.
Servitudes are legally binding if –
- Registered through a reservation in a deed of transfer, in terms of Section 76 of the Deed Registries Act 1937, or
- Using a notarial deed in terms of Section 75 of that Act,
together with the appropriate endorsement against the title deeds of the dominant and servient land.
On the other hand, one can register a personal servitude over movable or immovable property. A personal servitude is created over a servient tenement favouring a particular person and typically extinguishes on the beneficiary’s death. It is important to note that a personal servitude cannot be transferred or alienated.