An owner’s property rights are never unconditional or absolute. The owner of a property’s rights is limited by elements such as the community, neighbours and statutes all of which prescribe the manner of use and enjoyment of the property in question. Consequently, and in line with the aforesaid the owner of a property can be limited in his use and enjoyment by a limited real right held by another person over his property.
The term “servitude” originates from concept of slavery and “the state of being subject to someone more powerful.” This strokes with our topic and that a limited real right in terms of a servitude over a property, by another party will win the arm wrestle with the use and enjoyment of an owner of the property.
There are mainly three categories of servitudes:
A praedial servitude is a limited real right against the owner of a property in his capacity as owner. The servitude entitles one property owner to exercise a right on the property of another, or to prohibit another property owner from exercising a normal ownership right. A right of way is a good example of a praedial servitude.
A personal servitude entitles the holder of the real right to exercise some right in the property of another or to prohibit another from exercising a normal ownership right. Personal servitudes are categorised as usufruct (use and yield), usus (use) and habitatio (habitation). Personal servitudes cannot be granted in perpetuity and is usually linked to a period or the life time of the holder of the right.
Both praedial and personal servitudes are established by means of a contract, but the enforceability thereof against third parties are only effective once it has been registered against the title deed of the property. This requires a notarial deed which is then lodged at the Deeds Office and the servitude is then endorsed as a condition on the title deed of the property.
A public servitude is created in favour of the general public, therefore not in favour of a particular individual as is the case with praedial and personal servitudes. Examples of a public servitude would be pipeline servitudes, electrical substation servitudes, public roads and high voltage electricity lines.
Praedial servitudes and public servitudes are in essence similar in nature in that it attaches to the property and can be enforced against the owner of the property, even if there is a change of the ownership of that particular property. Whereas personal servitudes “attaches” to a specific person in question and cannot exist longer than the lifetime of the person to which the servitude is “attached” to.
Praedial servitudes, commonly in the form of a right of way to a property which is inaccessible unless provision is made by means of a servitude and which crosses over another owner or neighbour’s property is registered in terms of Section 76 of the Deeds Registries Act.
There are always two properties involved which are called the “dominant” and “servient” tenements respectively. The Deeds Office will in most cases require a detailed diagram in order to register a servitude. The registration of such a servitude pertains to the enforceability against third parties even if ownership of the property changes and the diagram serves as clear evidence in respect of the beacons of the servitude.
In some cases if a servitude runs exactly along the boundary of the whole of the property a diagram is not required, as the servitude can be clearly marked and identified. For purposes of this article and to properly illustrate a simple example of a praedial servitude we have attached Diagram 1 herein below: This example can be summarised that person B who is living on a farm (Farm D – Dominant tenement), can drive his bakkie through the farm of Person A (Farm C – servient tenement). Person B however, may only drive his bakkie on the Right of way path, which is a praedial servitude.
Diagram1:
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A – Public Road or Main Road B – Right of Way C – Servient Tenement D – Dominant Tenement
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Section 6 of the Prescription Act 68 of 1969 reads the following in respect of acquiring a servitude by prescription
Subject to the provisions of this Chapter and of Chapter IV, a person shall acquire a servitude by prescription if he has openly and as though he were entitled to do so, exercised the rights and powers which a person who has a right to such servitude is entitled to exercise, for an uninterrupted period of thirty years or, in the case of a praedial servitude, for a period which, together with any periods for which such rights and powers were so exercised by his predecessors in title, constitutes an uninterrupted period of thirty years.
Therefore, a person can acquire a servitude if he has openly exercised the right of a person with a right of a servitude for an uninterrupted period of 30 years.
Section 7(1) of the Act also provides for the contrary that “A servitude shall be extinguished by prescription if it has not been exercised for an uninterrupted period of thirty years.” Section 7(2) of the Act provides that “For the purposes of subsection (1) a negative servitude shall be deemed to be exercised as long as nothing which impairs the enjoyment of the servitude, has been done on the servient tenement.”
The disuse of a servitude was thoroughly considered in the case of Pickard v Stein and Others 2015 (1) SA 439 (GJ). In this case the Court considered the praedial servitude of light which was held by Stein in preventing Pickard in erecting structures and fences or planting vegetation along the boundary wall which would have the adverse effect of blocking the natural light from Stein’s property.
Stein as well as previous owners of the property grew shrubs and trees exceeding the height limitation as prescribed by the servitude. Pickard requested Stein to consent to the cancellation of the servitude however Stein agreed only if Pickard was to erect a wall. Once a wall was erected the dispute continued and Stein still refused cancellation.
The Court found that Stein had abandoned her rights by insisting on a wall being built and which consequently impacted the light to the property.
The cancellation of a servitude is done by means of a bilateral notarial deed if cancellation which is also registered at the Deeds Office. A servitude can also be cancelled by operation once the owner of the one property becomes the owner of the other property.
This is a summarised explanation of the inner workings of servitudes, and they hold much more information to their effect, use and impact on properties.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.