In part 1 of our 2 part series of articles on servitudes we will firstly define what servitudes are, and thereafter explain the implications which they have for immovable property or the owner thereof.
The most commonly used definition of servitude comes from Voet, whose definition thereof reads as follows:
“A servitude is a right belonging to one person, in the property of another, entitling the former to exercise some right or benefit in the property or to prohibit the latter from exercising one or other of his normal rights of ownership”.
At its base level a servitude is therefore a real right which one person holds over the property of another, giving the holder thereof a benefit to that property which they would not otherwise normally be entitled to.
In order to more fully understand servitudes, one must first distinguish between real rights and personal rights.
- REAL RIGHTS:
A real right is a right which is binding on and enforceable against the owner of the land in question as well as on his or her successors in title. The right therefore attaches to the property itself, regardless of who the owner of the property is or whether ownership changes hands.
Common examples of real rights in land include:
- Registered ownership of land;
- Registered personal or praedial servitudes;
- Long-term contracts or lease;
- A mortgagee’s right in respect of a mortgage bond.
2. PERSONAL RIGHTS:
A personal right is a right which exists between two persons and which is binding on such persons. The one person thus has a duty towards the other, and such agreement is only binding and enforceable against such two persons and no third parties.
An example to distinguish between real and personal rights is as follows:
A’s has incorrectly position his swimming pool so that it extends 2 metres onto his neighbours property, which is owned by B.
If A and B enter into an agreement in terms of which A pays B remuneration for the portion of the land which has been encroached upon, this will create a personal right between the two of them. If at some point in the future B decides to sell her property, the purchaser thereof will not be bound to this arrangement, and such purchaser will be entitled to compel A to remove the encroachment should he/she wish. This is because the agreement between A and B created a personal right in favour of A, but was not binding and enforceable against successors in title.
If however A and B came to the same agreement, but decided to register the right in the Deeds Office, then any future owner of the properties would be bound to the agreement. This is because a real right would have come into existence, which is registered against the title deeds of the properties in question and thus binding on successors in title.
From the above we have established that servitudes are real rights which are registered in the deeds office and which place a burden on an immovable property, and curb the rights of the owner thereof.
In part 2 of this series of articles we will distinguish between the two types of real right servitudes, namely personal servitudes and praedial servitudes.
Article by Sandy Naicker