By Helen Grange firstname.lastname@example.org
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, if a property owner is unable to fully exercise his or her ownership over the property.
What is a servitude?
A servitude is defined as a registered right that someone (called the servitude of servient holder) has over the immovable property owned by another person, that places limitations on the right of ownership, and constitutes a burden on the property in question; it must be registered against the title deeds of a property.
There are two types of servitudes, praedial or personal. Each depends on whether it benefits a particular piece of land or a particular person:
Here, the benefit favours land, and, regardless of the identity of the owner at any given point, successive owners will benefit from the interest in the servient land, in perpetuity. The servitude is registered against the title deeds of both pieces of property. There are two types of praedial servitudes, urban (where land is used for purposes of habitation, trade or industry) and rural (giving a farmer a right or way, a water or grazing servitude and a way of necessity). Thus, a person has a limited right of use of his neighbour’s land. For example, farmer A has the right to cross the property of farmer B, or drive his cattle over or allow them to graze on, Farmer B’s land.
Two farmers may have a registered agreement regarding the maintenance of the servitude, e.g., farmer B maintains the road to his farm if farmer A contributes to the maintenance of the road, proportional to his use of the road. In this case, an interested buyer of the property should be alerted to this right.
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 the title deed of the servitude holder.
If you are looking to buy a home on a panhandle stand, it’s important to ensure that there is a registered servitude over the front property, to ensure unhindered access to your property.
Our courts require some flexibility. In the case of Linvestment CC vs Hammerlsey, the Supreme Court of Appeal had to decide if a property owner could vary the terms of a registered servitude without the consent of the holder of the servitude. The court found that although Roman and Roman Dutch authorities held that a registered servitude could not be changed without the mutual consent of both property owners, it was in the interests of justice and in line with international trends to follow a more flexible legal approach. It found that as the proposed change was reasonable then the Court could, and did modify the terms of a registered servitude without the consent of the property owner who enjoys the benefit of the servitude.
The effect of this judgment is that if there is a registered servitude that unreasonably prejudices a property owner, he may turn to the court for help.
A service provider, like a municipality or Eskom, may have a servitude on a piece of land, e.g., for the erection of power lines, which prevent or limit activities that may affect their operations, such as no tall buildings or trees within the servitude. This would also affect the selling price.
Bregman Moodley Attorneys Inc. 2015/089214/21
Physical Address: Suite 314, 3rd Floor, Office Towers, Killarney Mall, 60 Riviera Road, Killarney, Johannesburg, South Africa
Directors: Roy Bregman, Sharusha Moodley & Benita Dayaljee
Associates: Melani Scholtz, Renthia Neethling & Abdul Buckus