SERVITUDES

The term “servitude” is often used in the context of the ownership of immovable property i.e. land.
But what is a servitude?

In its broadest sense, a servitude is the right to use your land or a portion of it for a particular purpose. Servitudes are typically either personal or praedial.

A PERSONAL SERVITUDE, as the name suggests, is the right someone enjoys over another person’s land in his personal capacity. On the death of the holder of that right, the servitude lapses. The right is not transmissible.

Common examples of personal servitudes are:

1. Habitatio: The right to live on another’s land.
2. Usufruct: The right to use the land and receive the fruits of it, e.g. rent( a usufruct may also be granted over movable property, e.g. a herd of cows)
3. Usus: The right to use the land.

An essential requirement of the above servitudes is that the holder of the right is obliged to take care of and maintain the property that is the subject of the right.

Personal servitudes may be created by agreement between the parties. Their agreement is recorded in a document known as a notarial deed because it is signed (executed) before a notary public.

The holder of the right’s interests is protected by the registration of the notarial deed in the relevant deeds office. The owner or the land’s title deed is endorsed, indicating that the land is subject to that right.

As mentioned above, personal servitude lapses on the holder’s death of that right. It is not possible to endow that right to one’s heirs.
A personal servitude may also, and often is, be created in a will. In these situations, registration of a notarial deed is not a requirement.

A PRAEDIAL SERVITUDE, on the other hand, is the right an owner of one piece of land enjoys over land belonging to someone else. As the right attaches to land, it exists irrespective of any change in ownership of either piece of land.

As praedial servitudes involve two (or more) pieces of land, the property enjoying the benefit of the servitude is known as the dominant tenement, while the other property is known as the servient tenement.

Examples of these servitudes are:

1. Right of way: the right to cross over another’s land to gain access to, say, a road.
2. Encroachment servitude: very often, structures on land are built in such a way that they cross over the boundary onto the neighbour’s property. To avoid demolishing the structure, the owner of the neighbouring property grants to the first owner an encroachment servitude over that part of his property affected by the building.
3. Water servitude: the right of the dominant owner to draw water from the servient land or to water cattle on the servient land.
4. Grazing servitude: the right to graze cattle on the servient tenement.

By definition, these servitudes are generally created by agreement between the owners of the two tenements. As in the case of personal servitudes affecting land, the party’s agreement is recorded in a notarial deed and registered against the title deeds to both properties.

Registration is not automatic because if the servient tenement is mortgaged, the mortgage holder has to consent to the registration. The servitude might adversely affect the value of his security.

An exception to the need for agreement between the parties is a right-of-way servitude known as a way of necessity (via necessitatis). This is a right claimed by an owner of land that is landlocked and has no direct or reasonable access to a public road other than over his neighbour’s property. As the name suggests, it is a question of necessity and cannot be claimed for frivolous reasons, e.g. to create a shortcut to a public road.

Prandial servitudes may also be created by statute, e.g. the Sectional Titles Act 1986 provides implied servitudes of support between buildings.

A local authority’s consent to the subdivision of a property or the establishment of a township invariably allows municipal servitudes to be registered in favour of that local authority. The owner of an affected property is not obliged to consent to this.

An interesting way a praedial servitude may be acquired is by prescription in terms of the Prescription Act, 1969 (known as acquisitive prescription).

If you have been openly (nec vi nec clam nec precario) and for an uninterrupted period of 30 years crossing your neighbour’s land, you may claim a servitude of right of way. This invariably involves an application to the court for an order to that effect, as claims of this kind are usually resisted by the servient owner!

The dominant owner is obliged to exercise the right granted to him to not interfere with the servient owner’s rights of ownership.

Praedial servitudes may be cancelled inter alia as follows:

1. By agreement between the owners of the two properties. Their agreement would also be embodied in a notarial deed, which is registered in the deeds office.
2. If either owner acquires the other’s property. This is by the principle that you cannot have a servitude over your property (Nulli res sua servit)
3. If registered for a limited time and that period expires.
4. By order of court in specific circumstances.

Both personal and praedial servitudes may be granted subject to the payment of consideration by the grantee of that right.

While servitudes may appear to be a form of ownership, this is untrue. A servitude is simply a right of use of another’s property.