In part 1 of this series we defined what servitudes are, and explained the implications which they have for immovable property or the owner thereof. In this article we will distinguish between the two types of real right servitudes, namely personal servitudes and praedial servitudes.
- PERSONAL SERVITUDES:
A personal servitude is a servitude which is registered in favour of a particular person. The distinguishing characteristics of personal servitudes are that:
- They are registered in favour of a particular person, and cannot be transferred or ceded by such person to any third party;
- With regards to their duration, personal servitudes can be:
- registered for the lifetime of the holder thereof, in which case the servitude lapses on the death of such holder;
- Registered for a specific period of time, and will then lapse once that time period has expired; or
- Registered until the happening of a specified event, and will lapse on the occurrence of such event.
The three most commonly found examples of personal servitudes are:
- Usufruct – The holder of a right of usufruct has the right to use a property belonging to someone else, as well as to collect and use the fruits or proceeds of the property;
- Usus – the holder of a right of usus has the right to use a property belonging to someone else, but cannot sell or use the fruits of the land; and
- Habitatio – The holder of a right of habitation has the right to live in property belonging to someone else, but cannot let the property to another person.
A common example of the operation of a personal servitude is where a husband, in his last will and testament, leaves his immovable property to his children, subject to his surviving spouse being granted a usufruct over the property during her lifetime. This right will enable the surviving spouse to reside in the property for the duration of her lifetime, and the children will be precluded from selling the property until she dies (or alternatively until she consents to the right being cancelled by mutual agreement).
On the death of the wife or cancellation of the servitude by mutual agreement the children will then be entitled to deal with the property as they wish, free from the operation of the servitude.
In his last will and testament the husband was not limited to granting the real right to his surviving spouse for the duration of her lifetime, but could alternatively have imposed conditions on such right (eg. That she could reside in the property until she remarried, in which case the right would lapse on such remarriage) or granted it for a specified period.
- PRAEDIAL SERVITUDES
A praedial servitude is a servitude which is registered in favour of one property over another. The right therefore attaches to a property itself, as opposed to a particular individual as in the case of a personal servitude. A praedial servitude consists of two components, being:
- The dominant tenement, being the property in whose favour the servitude is registered; and
- The servient tenement, being the property which is burdened by the servitude.
Whilst there is no specified number of praedial servitudes that can be registered, a common example of a praedial servitude is a right of way, in terms of which a right of way is registered in favour a property (the dominant tenement) over a neighbouring property (the servient tenement).
Once registered the owner of the dominant tenement will be entitled to traverse the servient tenement, subject to any conditions which may have been imposed at the time of the creation of the right (such conditions would normally specify the area of the servient tenement that can be traversed, as well as who is liable to maintain the area).
Furthermore, if either the dominant or servient tenement are sold, such right will continue to exist, as it attaches to the property itself and not the owner/s thereof (this is one of the reasons why prospective homeowners should ask to look at the title deed of the property which they are purchasing, as the property may be subject to a restrictive servitude of which they have no knowledge but which will potentially impact their enjoyment of their property).
Article by Sandy Naicker