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WHAT ARE SERVITUDES AND HOW DO THEY WORK?

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Writer of Roman Dutch Law, Johannes Voet, defined a servitude as follows: “A servitude is a right belonging to one person, in the property of another, entitling the former to exercise some right or benefit in the property or to prohibit the latter from exercising one or other of his normal rights of ownership.” Servitudes therefor impose restrictions on the rights, powers, and autonomy of a landowner or property.

The three most common property servitudes are personal servitudes, praedial servitudes and public servitudes.

Personal Servitudes

A personal servitude is registered against immovable property in favour of a person or legal entity. A registered personal servitude is a real right attached to a person as holder of the servitude over the land and is binding on and enforceable against the owner and his/her/its successor’s-in-title. The most common personal servitudes are use (the right to use), usufruct (the right to use as well as to collect and use the fruits) and habitatio (the right of occupancy). The general rule is that a personal servitude is created by way of a bilateral notarial deed, which is then registered in the Deeds Office.

A personal servitude may be created for a specified period of time or for the lifespan of a person. In the former instance the servitude lapses upon the occurrence of an event as specified in the notarial deed and in the latter the right will lapse upon the death of the holder of the servitude. A personal servitude cannot be transferred or ceded to any person except to the owner of the land being burdened by the servitude.

Praedial Servitudes

A praedial servitude is registered against immovable property (the servient tenement) in favour of other immovable property (the dominant tenement). The real right attaches to the land itself and not to a person. The servient tenement is the land burdened by the servitude, and the dominant tenement is the land that benefits from the servitude. Common examples of praedial servitudes are right of way, rights of aqueduct, rights of conduction of electricity and right of grazing servitudes.

Like personal servitudes, praedial servitudes are generally created by way of a notarial deed. A praedial servitude may be created for a limited period of time or in perpetuity. In most instances a land surveyor would need to prepare a servitude diagram showing the location/extent of the servitude. This diagram will be attached to the notarial deed and registered at the Deeds Office.

A praedial servitude may lapse by effluxion of time or may be cancelled by agreement between the parties. In both instances, a notarial deed of cancellation will have to be registered in the Deeds Office to note the cancellation against the title deed of the land concerned.

Public Servitudes

Public servitudes are created in favour of the general public and are not registered in favour of a specific person, legal entity or other immovable property. An example of such servitude would be a public road.

Conclusion

Servitudes are used to grant rights of use or access over immovable property or to limit a landowner from exercising all normal ownership rights. As a result, it may increase or decrease the value of your immovable property. 

Should you require any assistance registering servitudes against your immovable property or interpreting servitudes already registered against your property, please do not hesitate to contact our conveyancing department at Faure & Faure Inc to receive expert advice. 

Written by Faure & Faure Inc conveyancer Erika Oosthuizen, and article clerk Jayde De Wet.

Erika Oosthuizen, Attorney. Contact her for more information about Conveyancing and rates clearance certificates.

For more information, contact 021 871 1200 or email contact@faurefaure.co.za.

Faure & Faure Inc. – Your partner in Law in the Paarl and Boland Area.

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