Stay up to speed about servitudes

Oct 14, 2017 | Motivation, Trade Tools

Why being informed makes sense if a seller’s property has a servitude

Prospective property buyers will sometimes ask: is there a servitude? The presence of a servitude can affect the value of a property for both buyer and seller, if an owner is unable to fully exercise his or her ownership over the property. A servitude is defined as a registered right that someone (the servitude of the servient holder) has over the immovable property owned by another person, which places limitations on the right of ownership and constitutes a burden on the property in question. It must be registered against the title deeds. There are two types of servitudes, praedial or personal. Each depends on whether it benefits a particular piece of land or a particular person:

PRAEDIAL SERVITUDE

Here the benefit favours land, and, regardless of the identity of the owner at any given point, successive owners will benefit from the interest in the servient land, in perpetuity. The servitude is registered against the title deeds of both pieces of property. There are two types of praedial servitudes: urban (where land is used for habitation, trade or industry) and rural (say, giving one farmer a right of way over another’s land, or a water or grazing servitude). Thus a person has a limited right of use of his neighbour’s land. Two farmers may have a registered agreement regarding the maintenance of the servitude. For example, farmer B maintains the road to his farm if farmer A contributes to maintenance, proportional to his use of the road. In this case, an interested buyer of the property should be alerted to this right.

PERSONAL SERVITUDE

This favours one specific person and not successive owners, so it terminates when that person dies or moves on. An example would be the right of the owner of a panhandle property to use an access road on the neighbouring property at the front. It is only registered against the title deed of the servitude holder.

COURTS ARE FLEXIBLE

In the case of Linvestment CC v Hammersley (2008), the Supreme Court of Appeal had to decide if a property owner could vary the terms of a registered servitude without the consent of the holder of the servitude. The court found that although current law held that a registered servitude could not be changed without the mutual consent of both property owners, it was in the interests of justice, and in line with international trends, to follow a more flexible legal approach. The court found that as the proposed change was reasonable, it ruled to modify the terms of a registered servitude without the consent of the property owner who enjoyed the servitude benefit. The eff ect of this judgment? If there is a registered servitude that unreasonably prejudices a property owner, he or she may turn to the court for help. This would be an exceptional case, however. A service provider such as a municipality or Eskom may have a servitude on a piece of land that prevents or limits activities that may aff ect their operations, such as stipulating no tall buildings or trees within the servitude. An example would be land for the erection of power lines. This would affect the selling price. The presence of a servitude will be in the title deeds and surveyor-general’s diagram. It is wise to access both documents, so both seller and buyer are fully informed of their rights.

“If there is a registered servitude that unreasonably prejudices a property owner, he or she may turn to the court for help”

Roy Bregman is a senior partner at Bregman & Moodley Attorneys, which focuses on commercial, insolvency, labour and family law, wills and trusts, deceased estates and alternative dispute resolution. He is a Small Claims Court Commissioner and has practised law for 43 years.

Words: Roy Bregman