A personal servitude is a servitude registered over immovable property in favour of an individual. The most common servitudes is a usufruct. An example would be where Mr A dies and in his will bequeaths his house to his children, but grants his wife a usufruct over the house until her death. In this instance the children will have the house registered in their names, but the wife will have the right to live in the house until the day she subsequently dies. Lastly, upon her death, the children will then have both the right of ownership and use of the house.
Real (praedial) servitudes
A real servitude is a servitude registered over one immovable property (the dominant tenement), in favour of another immovable property, (the servient tenement). An example would be a servitude that restricts the erection of a building above a certain height that may obscure the view of the holder of the servitude. A real servitude can be divided into rural and urban servitudes, which simply describes the different areas in which the servitude operates.
Important rural servitudes are those relating to rights of way, such as the right of a farmer to cross the property of another. A farmer who has no reasonable access to a public road other than by crossing the property of another landowner may claim a way of necessity. The dominant owner must exercise such a right in a reasonable way and not because this is the shortest route. The family, visitors and employees of a dominant owner may enjoy the same use of a right of way. A way of necessity may be changed when a servient owner offers an alternative route that is no less convenient.
Window-right is probably the most typical urban servitude; it gives the dominant owner the right to have a window or opening in a wall which is on the servient owners’ boundary. In areas of high rainfall there may be servitudes which give the right to divert water flowing from a roof, or across a dominant property, into the servient property. The opposite may apply in dry areas, where the owner of a servient property, which would be situated in a higher position than the dominant, may not interfere with the flow of water from his or her roof into the dominant property. Lastly, a reciprocal servitude is one when two houses share a common wall which neither owner may demolish.
Some servitude tips and tricks
Unless a servitude is registered against the title deed of the property in the Deeds Registry, it will not be binding on subsequent owners of the property, unless they are aware of it. For instance, if a farmer who has an agreement with a neighbour to draw water from the neighbour’s farm, they would not be able to exercise that right should the neighbour sell the farm, unless that right was registered at the Deeds Office against the title deed of the farm.
Most servitudes are the result of an agreement between two parties on the extent of the servitudal rights, the amount to be paid by the dominant party to the servient party for allowing the creation of the servitude, and the period for which the servitude is to remain valid. A servitude may be acquired by prescription, for instance, a landowner may prove having used a neighbour’s land for 30 years by driving cattle across it without dispute. This land owner would then be entitled to have the servitude registered against the title deed of the servient property. In the instance where the servitude came about by agreement, each party may sue for damages if the rights of the agreement are violated, or make an application for an interdict to prevent a further breach of agreement.
Finally, a personal servitude ends with the time specified. The parties to a real or personal servitude may end it by mutual agreement at any time. A real servitude is also ended by destruction of one of the properties or when the need to exercise it no longer exists. An example being when the owner of the dominant property purchases the servient property; the servitude does not automatically come back into operation should the owner thereafter sell the land to another party – they would have to reregister it again.
This article is intended for information purposes only and is a brief exposition of the abovementioned legal position. Mention is not necessarily made of all the finer nuances as set out above. This article should under no circumstances be construed as formal legal advice. Contact VDT Attorneys for assistance in this regard.