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June 24, 2021

Servitudes: Not for the property owner’s enjoyment

Title deeds registered over immovable land, often contains a condition to which such property is subjected to. Such a condition may appear in the form of a servitude. A registered servitude creates a limited ‘real right’ for one person (the servitude holder) over the property of another (known as the servient property). The servitude allows the servitude holder to either do something on the servient property or refrains the owner of the servient property from doing something.

Servitudes mainly constitute a personal servitude or a praedial servitude. Simply put, a servitude is either to the benefit and advantage of another person (a personal servitude), or to the benefit or advantage of another property, being the dominant property (a praedial servitude). A personal servitude can include a usufruct, right to use or the right to occupy the servient property for period of time. Since the right attaches to an individual person, it cannot extend beyond the death of the holder.

Praedial servitudes can constitute a right of way servitude, servitude for an electrical substation, pipeline servitudes etc. In the case of a right of way servitude, the servitude holder (being the owner of the dominant property) is granted a right to use a specific road on the servient property of another. A praedial servitude also constitutes a limited real right, once registered over a piece of land in favour of a dominant property. The right therefore remains enforceable by subsequent owner/s of the dominant property. If the dominant property is transferred, the right passes to the next owner.

Often the negotiations surrounding servitude rights between land owners can become complex. So, whether you need a specialist to assist you in such negotiations or just help you to register a servitude in the deeds office, contact our offices to speak to one of our experienced conveyancers.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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