Right-of-way servitude and how to register it?

Registration of a right-of-way servitude can be a useful and sometimes vital mechanism granting the holder of such a right a method through which to travel to and from their property. In this article, we will discuss what a right-of-way servitude is, how such a servitude is created, how it will lapse or how it can be cancelled.

What is a servitude?
A servitude can be described as a right which is held by one person granting that person certain rights or benefits over the property of another person, or limiting the ownership rights of another person over a property registered in their name.  Put more simply, a servitude can be described as the right of one person or legal entity to use the land of another person or legal entity for a specified purpose. A servitude is thus a limited real right which comes into operation upon registration thereof at the Deeds Office, and the owner of the property over which the servitude is registered as well as their successors in title will be bound by such a servitude, until the servitude lapses or is cancelled. 

What is a right-of-way servitude? (praedial servitude)
A right-of-way servitude is a form of praedial servitude. This means that there are two properties involved: the one property being the dominant tenement and the other the servient tenement. The owner of the dominant tenement will have the right to use a part of the land of the servient tenement for a specified purpose.  In simpler terms, such a servitude grants a person or legal entity in whose name the dominant tenement is registered the right to use the property of another person or legal entity, the servient tenement, to travel to and from the dominant tenement.  This normally occurs where one owner of land needs to travel across another owner’s land in order to reach a public road, and to travel back to their property.

How is a right-of-way servitude created?
A right-of-way servitude is created by way of an agreement between the two owners of the respective pieces of land, and it is a requirement that such an agreement must then be captured in a notarial deed executed by a Notary Public and registered in the Deeds Office.  There are however exceptions in this regard, the first being where a person owns both properties and transfers the servient tenement, over which the servitude will be registered in favour of the dominant tenement, to another person.  The second instance is where the owner retains the servient tenement over which they intend to register the servitude in favour of the dominant tenement, and transfer the dominant tenement to another person. In the two examples explained above the servitudes need not be created by way of a notarial deed, but can be created directly in the Power of Attorney signed by the seller of the piece of land, and is carried over as a condition in the Title Deed.

In the first instance it will be created on the land being transferred to another person in favour of the land held by the owner, and in the second instance it will be created over the land held by the owner in favour of the land that is being transferred to another person.  This has the effect that a personal right, created in terms of the agreement between the parties, is converted into a registered real right which is now not only binding between the two persons or owners of the properties, but also against the land, and thus also binds the properties’ successors in title as well.   The parties will also agree to a consideration amount payable to the owner of the land for the part over which the servitude will be registered, as a form of compensation. It is further important to remember that the consent of any person or legal entity who’s rights will be infringed upon if a servitude is registered over a specific property must be obtained. For example, the consent of a Bond holder, usually a bank or financial institution, will have to be obtained if a bond is in operation over the servient tenement and a person wants to register a right of way servitude over the servient tenement in favour of the dominant tenement.   

How is a right-of-way servitude cancelled?
A right-of-way servitude will cease to operate in two ways, when it lapses due to effluxion of time or if it is cancelled. With effluxion of time it is meant that the servitude was registered to only operate for a specified time period, and when this period has lapsed the owner of the land who is affected by the servitude may bring an application to the registrar of deeds asking that the title deeds of the servient and dominant tenements be endorsed that the servitude has lapsed “due to the effluxion of time”. The consent of the bond holder is not required in such an application however the two title deeds of the two properties must still be obtained from the respective owners for lodgement. Cancellation of a right of way servitude can take place in two manners, either by agreement between the parties in the form of a bilateral notarial deed, or by abandonment where the holder of the right abandons the said rights, which can take place by way of either a bilateral notarial deed or by way of an order of court. The consent of the bond holder of the dominant tenement will have to be obtained and must be lodged together with the application for cancellation of the servitude. 

Taking the above into consideration, it is vital to consult an experienced expert in the field, such as a Conveyancer and Notary in order to ensure that the right of way servitude you require is registered in the correct manner and to ensure protection of your interests in the immovable property (either as owner of the dominant or the servient tenement of land).

Disclaimer: This article is the personal opinion/view of the author(s) and is not necessarily that of the firm. The content is provided for information only and should not be seen as an exact or complete exposition of the law. Accordingly, no reliance should be placed on the content for any reason whatsoever and no action should be taken on the basis thereof unless its application and accuracy has been confirmed by a legal advisor. The firm and author(s) cannot be held liable for any prejudice or damage resulting from action taken on the basis of this content without further written confirmation by the author(s). 

 

November 21, 2023
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