A servitude can be defined as a limited real right registered in the Deeds Office against the title deed of a property in terms of which a burden is imposed on an immovable property restricting the rights, powers or liberties of its owner to a greater or lesser extent in favour of either another person or the owner of another property.
In simpler terms, the holder of the servitude will be entitled to exercise some right on the property of another or prohibit the owner of the property from exercising some of his/her ownership rights.
It is necessary for conveyancing purposes to draw a distinction between personal and real rights, as in terms of the Deeds Registries Act No 47 of 1937, only real rights in immovable property are registrable against a property.
Servitudes are classified as either personal or praedial. Both praedial and personal servitudes, once registered, constitute real rights. One should not be misled into thinking that a personal servitude is merely a personal right and not registerable.
Herein we will shortly discuss the distinction between personal or praedial servitudes.
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. This servitude is established in favour of a particular person and cannot be transferred to a third party.
Personal servitudes may be constituted for a fixed term of years or be granted until the occurence of a future event or for the lifetime of the beneficiary, but not beyond his or her death.
The most commonly known personal servitudes are a usufruct, right to use, or the right to occupy a property for a certain period of time.
Praedial servitudes can be recognised as follows: A right is granted over one (or more) property/ies in favour of another property/ies. There is always a servient and a dominant tenement/property.
A classic example of a praedial servitude is the right of way servitude granted by the owner of a farm to the neighbouring farmer allowing the latter access to his farm from a main road.
A praedial servitude is thus a real right entitling one piece of land from receiving the benefit of the right, and the other piece of land being subject to the right. This servitude attaches to the property itself and not to a person and even though a change in ownership may take place, this servitude will continue to exist and can only be cancelled by agreement between the parties.
Creation of a servitude
A personal servitude can be created by agreement between the parties. In practice, however, this type of servitude is mostly provided for in terms of a will in which a surviving spouse or heir is given the right to occupy the property during their lifetime.
A praedial servitude is similarly concluded by way of an agreement between parties. This agreement will set out the rights and responsibilities of each party as well as the consideration amount that the person in whose favour the servitude is to be registered, will have to pay the owner of the property. The consideration payable, is usually in the form of a lump sum, but the parties are free to agree on a monthly or quarterly payment, depending on the type of servitude.
The servitude agreement must be drafted and notarised by a notary public and registered in the Deeds Registry.
How do you know whether there is a servitude registered over a property?
By examining the title deed of a property, one would be able to ascertain whether there is a servitude registered over a property.
After registration in the Deeds Office the servitude forms part of the conditions contained in the title deed or it would be in the form of an endorsement on the said title deed.
Cancellation of a 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. This will either be in the form of a Bilateral Notarial Deed of Cancellation or a Unilateral Notarial Deed of Cancellation.
A Bilateral Deed is entered into by both parties as one party holds the right and the other party is subject thereto. On the other hand, a Unilateral Deed will be used when the servitude does not place any obligations on the other party.
A personal 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 the death of the holder thereof or in same manner as a praedial servitude, with a notarial deed of cancellation.
A common issue that arises with servitudes, is that the servitudes are registered as mentioned herein, but agreements between the parties are not reached regarding aspects such as maintenance and access to the property. These agreements are of the utmost importance as it can lead to disputes between parties.
It is advisable to contact a conveyancer to assist you in ascertaining whether a servitude is registered against your property and to identify the type of servitude. Alternatively, assist you in creating a servitude or having a servitude removed and ensuring that your agreement deals with all the relevant aspects of the servitude to avoid unnecessary disputes.
Written by Arinda Truter, Associate Attorney, Notary & Conveyancer, SchoemanLaw Inc.