Servitudes

What is a Servitude?

A servitude is a limited right that one has to the use of another person`s property.

“For example, if you need to drive over a portion of your neighbour`s property in order to access your farm, you would typically have been granted a servitude of right of way by the neighbour in order to access your farm” said Jannie Fourie, the Principal of AGRISELL.  

The servitude is registered in the deeds office and endorsed against the title deeds of both your property and your neighbour`s property, in order to ensure that your neighbour is bound to recognise and allow you to exercise your right in terms of that servitude, for so long as you are the owner of the property.

Types of Servitudes

There are many different types of servitudes. For example, right of way servitudes, servitudes of aqueducts (which entitle the grantee to draw water from a well, dam, borehole, river, fountain or other water source).

Servitudes can also be personal in nature (meaning that they will endure only until the death of the person to whom it is granted) or praedial (which means that the servitude is granted not in favour of a person but in favour of a piece of land, and will remain registered in favour of that particular land.

Why registering a servitude?

Once servitude has been registered against the title deeds of the properties concerned it obliges the parties to recognise the servitude and allows the person to whom the servitude is granted to enforce their rights.

Unregistered servitudes

However, just because servitude is not registered, this does not mean that no rights and/or obligations arise between the parties to the servitude agreement. This could happen where, for example, servitude was intended to be registered but was accidently not registered. Another instance, in which an unregistered servitude can still result in enforceable rights, is where a servitude called a right of way by necessary arises. This happens in situations where is a servitude comes into existence by virtue of the common law to enable the owner of a ‘landlocked’ piece of land to access his/her property, regardless of whether there is an agreement between the parties or not to this effect.

“Therefor common law ensures a right of way to any rural property with a title deed”, according to Jannie Fourie.

Parties to a servitudes agreement

Most servitude arises by agreement between the parties and in the case of a personal servitude (which is a servitude granted in favour of a person for the duration of that person’s lifetime) the relevant parties will be the person to whom the servitude is granted (“the granted”) and the person who is granting the servitude (”the grantor”).

In the case of a praedial servitude the parties will be the registered owners of the two pieces of land that the servitude concerns. The owner of the piece of land that be burned by the servitude (“the servient tenement”) is called the grantor and the registered owner of the piece of land in favour of which the servitude is being registered (“the dominant tenement”) is called the grantee.

The relevant parties (the grantor and grantee) will sign a servitude agreement which must be drafted by a Notary Public and notarised by that Notary Public, who will then register the servitude against the title deeds of the two pieces of property (in the case of a praedial servitude) or the one piece of property (in the case of a personal servitude) concerned.

How servitudes are defined

Servitudes can be defined in one or two ways. The first is where a diagram showing the land concerned is drafted by a land surveyor and is registered in the Surveyor General’s office and given a unique diagram number, on which diagram the extent of the servitude is indicated by reference to letters.

The notary or conveyancer concerned will then describe the extent of the servitude in the relevant document (which may be a servitude agreement or a power of attorney/title deed) by referring to the letters reflected on the SG diagram.

The other manner in which servitude can be described is by explaining in words where the servitude lies in relation to the lay of the land, by reference to deeds and diagrams already registered, and describing this in the title deed of a property when it is transferred or in a servitude agreement when it is registered.

“From experience a lot of misunderstandings and confusions exist regarding servitudes and its applications and I therefor trust that the above will clarify some of the concerns” concludes Jannie Fourie.