Whether you already have a property, planning to buy your first or another, it is always good to be informed of things like servitudes before you make your purchasing decision. Here’s what you need to know about servitudes.
What is a servitude?
The definition of a servitude is a right or compulsory service by one person to use another’s property. It allows the holder of the servitude to do something with the other person’s property, which would not normally be allowed. An example is the right of way to travel over a section of the other person’s property to reach your own property.
Types of Servitudes
There are three types of servitudes; public, personal and praedial. Public servitudes are created in favour of the general public and are not registered in favour of a specific person, legal entity or other immovable property. An example of such servitude would be a public road, pipeline servitude, electrical substation servitude, and so forth. Even though a change in ownership may take place, this servitude will continue to exist and can only be cancelled by agreement between the parties.
A personal servitude is a right attached to a specific person to use and enjoy another’s property and cannot exist longer than the lifetime of the person in whose favour it was registered. The most well-known personal servitudes are the usufruct, right to use, or the right to occupy the property. When that individual dies, the servitude falls away. It does not pass on to the new owner of the property.
A praedial servitude is when a person has a right to use a part of the property due to ownership of the property. Should he sell the property, the servitude will move over to the new owner.
The most common rural praedial servitude is a right of way servitude, where a property owner has the right to use another person’s property to get to their property. A farmer who has no reasonable access to a public road other than by crossing the property of another landowner may claim a way of necessity. The dominant owner must exercise such a right in a reasonable way and not because this is the shortest route. One way of necessity may change when a servient owner offers an alternative route that is no less convenient.
Window-right is probably the most typical urban servitude, it gives the dominant owner the right to have a window or opening in a wall which is on the servient owner’s boundary. In areas of high rainfall, there may be servitudes which give the right to divert water flowing from a roof, or across a dominant property, into the servient property. The opposite may apply in dry areas, where the owner of a servient property, which would be situated in a higher position than the dominant, may not interfere with the flow of water from his or her roof into the dominant property.
How is a servitude registered?
A personal servitude can be created by agreement between the parties but in practice, it is mostly provided for in terms of a will in which a surviving spouse is given the right to occupy the property during their lifetime. A praedial servitude is mostly concluded by way of an agreement between parties which sets out the rights and responsibilities of each party as well as the consideration amount that the person in whose favour the servitude is to be registered, will have to pay the owner of the property.
The general rule is that public, personal and praedial servitudes must be registered against the title deed of the property by means of a notarial deed between the owner of the property and the holder of the real right. The servitude agreement must be drafted and notarized by a notary public and registered in the Deeds Registry. In most instances for the registration of a praedial servitude, a land surveyor or architect would need to prepare a servitude diagram, which would indicate the location of such servitude. This diagram will need to be attached to the notarial deed and registered.
After registration in the Deeds Office, the servitude forms part of the conditions contained in the title deed of the property and can be cancelled by agreement between the parties in the case of a praedial servitude.
In the instance of a praedial servitude, a notarial deed of cancellation will have to be registered in the Deeds Office to note the removal of the servitude condition from the title deed. In most instances of a personal servitude the servitude can be cancelled by an application to the Registrar of Deeds, stating that the servitude has lapsed due to the passing of time or death of the holder thereof.
When you are selling your property, you do not need to get permission from the person that has a right of a servitude over your property. However, the new owner will have to comply with the servitude.
How do you know if there is a servitude registered over the property?
If you were to examine the title deed, you would be able to ascertain whether there is a servitude registered over the property. If you are unsure, ask your Conveyancing Attorney or an Architectural Professional to assist you.
How can it impact the value of a property?
If a servitude is held on a property, the owner of the property will be unable to exercise their entitlement to the property in the full capacity. The servitude implies that the property does not just serve the owner, but also another property or person. Because of this, the owner’s rights are somewhat diminished.
In principle, the holder of the servitude has priority. Essentially this means that the owner of the property may exercise all their usual rights of ownership, provided it does not impede the rights of the servitude holder. The owner cannot exercise any rights that are contrary to the servitude or grant another servitude which infringes the existing one. While the holder of the servitude has the right to perform all acts necessary to utilise the servitude, they must do so in a manner that causes minimal inconvenience to the owner of the property. It is also vital that the burden on the property is not increased beyond the express or implied terms of the servitude.
While this may not be an issue for some, many buyers are turned off by the fact that a servitude is held on a property. As a result, a servitude can reduce the demand for a property which in turn can have a negative impact on its perceived value in the market.
A common issue that arises with servitudes, is that the servitudes are registered as mentioned herein, but agreements between the parties are not reached regarding aspects such as maintenance and access to the property. These agreements are of the utmost importance as it can lead to disputes between parties.
If you are overwhelmed, there is nothing wrong with asking for help!
We will point you in the right direction.
Carina Botha
Boaz Architects
082 920 3158
