Personal servitudes are limited real rights granted in favour of specific individuals (referred to as a “beneficiary”) over things owned by others. Personal servitudes are personal to the beneficiary, and cannot be transferred to others. Furthermore, personal servitudes are either created for a fixed term, or for the lifetime of the beneficiary.
This article will focus on three specific types of personal servitudes, namely usufruct (usus fructus), use (usus), and habitation (habitatio), with a key focus on what these personal servitudes aim to protect.
1. Usufruct (usus fructus)
The holder of the personal servitude of usus fructus is known as a usufructuary. A usufructuary has the right to use and enjoy the property in question, and is entitled to enjoy the fruits of that property. At the same time, the usufructuary has a duty of care: the usufructuary must ensure that the property is properly maintained and eventually returned to the grantor without being damaged or destroyed.
A usufruct can be granted over immovable things, movable things, and even incorporeal things, such as shares in a company, however a usufruct cannot be created over a consumable thing such as beverages or food.
With regards to things which tend to create natural fruits (such as fruits, vegetables, cattle, etc.), the usufructuary becomes the owner of such fruits. The usufructuary furthermore bears the responsibility of costs related to the collection of these fruits. Accordingly, a usufruct carries both positive and negative duties.
When drawing a comparison between the personal servitudes of usus fructus, usus and habitatio, it is clear that a usus fructus confers the most extensive rights to its holder.
2. Use (usus)
The personal servitude of usus is very similar to usus fructus, however, the rights conferred are more limited. The holder of this personal servitude is entitled to possess and use the thing in question or occupy it. The holder of this personal servitude may also make use of the fruits of the thing in question, but merely for his/her daily needs and the needs of his/her family. Unlike with a usus fructus, the holder is not entitled to sell the fruits nor lease the thing in question. As with a usus fructus, the holder of the personal servitude of usus is also responsible for maintaining the thing in question.
3. Habitation (habitatio)
Similar to the above, the personal servitude of habitatio confers on its holder the right to live on the property of another person, with his/her family. The holder of this personal servitude is also obliged to keep the property in good condition.
In Kidson & another v Jimspeed Enterprises CC & others the court considered the personal servitude of habitatio. The first applicant obtained the right of habitatio over a farmstead for as long as he lived. Alleging that the first respondent made life unbearable for him and his family, the first applicant left. A few years later, the Applicant decided to move back to the farm, however, the house in question had been destroyed. The question before the court was whether the personal servitude still existed despite the destruction of the house. The court held that, since the personal servitude of habitatio was registered against the title deed, it remained legally enforceable even though the house was destroyed.
Furthermore, in Hendricks v Hendricks and others, the court had to consider the question whether the holder of a personal servitude of habitatio could obtain an eviction order against the owner of the property who occupies the property without the holder’s consent. The court held that when a personal servitude, such as usus or usufruct, is registered against a property the owner cannot fully exercise full dominium over it without the right holder’s consent. In the absence of consent, the occupation by the owner of the property would be unlawful.
It is clear from above-mentioned case law, that this personal servitude is more extensive than the personal servitude of usus in that it allows the holder thereof to occupy, lease or sublease the property to others.
4. Formalities applicable to the enforcement of Personal Servitude
For personal servitudes such as usus, usus fructus, and habitatio to be enforceable against third parties, these rights must be registered in the Deeds Office. An agreement between the holder and the owner of the thing alone creates only a personal right, which is binding between the parties but not enforceable against third parties such as successors in title or creditors.
For a usus fructus, usus and habitatio to be binding on third parties and the public at large, it is necessary for such personal servitudes to be registered at the Deeds Office. This is generally done by a bilateral notarial deed, signed by the owner of the encumbered land and the person in whose favour it is created. What is important is that said notarial deed must be attested to by a notary public and registered by the Registrar of Deeds.
5. Termination of Personal Servitudes
Personal Servitudes may be terminated through agreement between the servitude holder and the owner. If, however, terminated through agreement, the termination will be binding inter partes only. It will only be binding on third parties once it has been duly cancelled through the registration of a notarial deed of cancellation in the Deed Office.
A personal servitude will terminate by operation of law if the holder of the personal servitude becomes the owner of the thing or property in question. Furthermore, if a personal servitude is created for a specific period of time, such servitude will terminate upon effluxion of time. Another method of termination includes abandonment, where the servitude holder knowingly allows the owner of the thing or property in question to act in a way that will render the servitude impossible. A personal servitude may further terminate through prescription, if it is not exercised for an uninterrupted period of 30 (thirty) years. Lastly, a personal servitude is terminated upon the death of the servitude holder.
6. Tax implications of the above-mentioned Personal Servitudes
Acquiring a personal servitude may trigger various tax implications, such as Donations Tax, Estate Duty, and Income Tax, and it is advisable to consult a legal or tax professional for guidance.
