A servitude is a registered right that one or more people have over the property of another. In short, it gives the holder the right to use the property in a certain way and can infringe upon that owners’ rights.
For this reason, a servitude diminishes the rights of the owner of the servient property. The word “servitude” implies that some property actually “serves” either another property (praedial servitude) or another person (personal servitude).
A servitude holder is entitled to unrestricted enjoyment of his or her servitude. However, the servitude holder must exercise those rights in a manner that is considerate to the owner of the servient land. The servitude should not cause a burden on the servient land beyond what is expressly or tacitly allowed by the servitude.
There are two types of servitudes:
In the case of a praedial servitude, the right is held by the owner of a piece of land over a servient property and the servitude becomes part of the land so to speak. A praedial servitude is constituted in favour of successive owners of the land. So, should a person sell the property, the new owner gains the servitude because he or she is now the owner of the land.
EXAMPLES OF A PRAEDIAL SERVITUDES ARE
- A servitude of light. This right guarantees access of light from another’s land, unimpeded by buildings or trees.
- A servitude of right of way. A right of way for one person to use a piece of land to access their property
- This can be in favour of a specific person, a class of persons or the public at large.
A personal servitude is a right against property that is in favour of a specific individual. This right is held by a person in their personal capacity and not in the capacity of the property owner. It extinguishes (lapses/dies) on the death of that individual and cannot be transferred. Or, it lapses when the holder of that right consents to waive and cancel or sells the property alongside the owner.
AN EXAMPLE OF A PERSONAL SERVITUDE IS A USUFRUCT.
A usufruct is a right to use and enjoy another’s property. A person can have a usufruct over another’s home and therefore have the right to use and enjoy that home to the limitation of the owner of that home. It is always in favour of a specific person or persons.
THE PUBLIC SERVITUDE AND COMMON PRACTICE
A public servitude is created in favour of the general public. It is not praedial as there is only one immovable property involved and it is not personal as it is not in favour of a specific individual, but the public in general.
An example would be a public road, or a public park, such Green Point Common or the Rondebosch Common.
The general rule is that both personal and praedial servitudes must be registered against the title deed of the property, mostly by means of a notarial deed between the owner of the property and the holder of the real right. The servitude agreement must be drafted and notarised by a notary public and registered in the Deeds Registry.
After registration in the Deeds Office, the servitude forms part of the conditions contained in the title deed of the property and can mostly be cancelled by agreement between the parties in the case of a praedial servitude. In the instance of a praedial servitude, a notarial deed of cancellation will have to be registered in the Deeds Office to note the removal of the servitude condition from the title deed.
In most instances of a personal servitude, the servitude can be cancelled by an application to the Registrar of Deeds, stating that the servitude has lapsed due to the passing of time or death of the holder thereof, but will require a formal application to have it cancelled and removed from any title deed.
Contact ESI Attorneys should you need any assistance with registering or cancelling a servitude.