We come across servitudes more often than we think. We just don’t know it. An example could be something as simple as using the walkway in front of your neighbour’s property to enter or exit your own property. This is an example of right of way.
Servitudes play a vital role in facilitating the use of land. Understanding the types of servitudes is imperative for landowners, developers as well as the rights holders.
Servitudes may be used as a mechanism to grant or restrict enjoyment and access to another’s property.
Praedial Servitudes:
A praedial servitude is a servitude that enables one landowner to impose a burden on the land of another owner. The land that benefits is the “dominant land” and the land that is burdened by this benefit is called the “servient land”.
Praedial servitudes are further divided into rural and urban praedial servitudes. These types of praedial servitudes are usually determined by the way the land is used and not by the location of the land.
Where the dominant land is being used for agricultural purposes which adds to the value of the land, it will be classified as a rural praedial servitude.
Where the land is being used for purposes of residence, trade or industry, it will be classified as an urban praedial servitude.
How to create a praedial servitude?
Praedial servitudes may be created for a set / limited period of time, or for an indefinite period and takes form of a written agreement. This agreement, in accordance with the Deeds Registries Act, must be created by way of a notorial deed. This essentially means that the agreement would need to be executed by a qualified notary public and then registered at the deeds office that falls within your jurisdiction.
What form of recourse is available to a person part of a servitude agreement?
The most common form of recourse for a holder is to approach a court to have an interdict granted in their favour. In order to succeed in this kind of application, the holder of the right would need to prove that they in fact have the right and that it is being interfered with. This approach should be used as a last resort. In these instances a prohibitory interdict may also be granted to prevent the interference from reoccurring.
Other options for a servitude holder could also make use of the mandament van spolie as a way of recourse to regain lost use of the right. An example where this was successfully applied was in the case of Bon Quelle (Edms) Bpk v Munisipalitet van Otavi.
Key takeaways:
The knowledge of praedial servitudes becomes extremely important to landowners and those part of an agreement involving another’s property. Ensuring that your servitude meets all the requirements comes in handy should litigation arise. Seeking advice from a qualified conveyancer or notary can assist you by ensuring that you take all the necessary steps to register your servitude correctly.
Kimberley Mali, Candidate Attorney, kimberley@caf.co.za
Written by Kimberley Mali
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).