A praedial servitude is a limited right, which the owner of a property (“dominant property”) has over another property (“servient property”). The creation of the servitude entitles the owner of the dominant property to certain rights over the servient property. These rights are however subject to the principles of reasonableness.
The servitude is registered as a notarial cession against the title deeds to both properties and therefore is enforceable against third parties and protects both owners of the respective properties. This is especially necessary if the properties are sold or transferred. The right attaches to the land and are included as conditions in the title deeds to the properties and therefore are enforceable by and against future owners of the land.
Some common types of urban servitudes
This issue has become very topical in the Western Cape due to the ongoing drought as many people are resorting to sinking boreholes or well points as an alternate source of water. Due to the costs related to sinking these boreholes, they are often shared by neighbours with informal agreements as to times and frequency of use. The risk with such an arrangement arises when the owner of the property on which the borehole is situated, sells the property. There is no protection for the neighbouring properties to access the borehole if the new owner is resistant.
By registering a notarial deed of servitude, which sets out the rights, and obligations of the parties, all participating owners are secured. Their rights will be enforceable against future owners of both properties.
Right of way
As the name suggests, it secures the right to have passage over another property. An example would be when a property is subdivided to create a panhandle, which is used as a common driveway. The panhandle will be registered as the property of one of the owners with a servitude being granted to the other owner to use the driveway to access their property. In such a case, the dominant property must ensure unrestricted access to the servient owner. For example, a gate cannot be erected without both parties being given a key or a means to open the gate.
Light and view servitudes
Properties in the Western Cape and particularly along the Atlantic Seaboard attract huge prices, largely due to the unrestricted views of the Ocean and Mountain.
A servitude of light is a right of access to light from another property, which is unimpeded by buildings or trees.
A servitude of view is the right to an unimpeded view, restricting the owner of the servient property from planting trees or building an extension, which will obstruct the views of the dominant land.
Unless the issue is regulated in terms of an agreement, a neighbouring owner is not restricted in their use of their property except by the zoning and building regulations governing the property.
Often a wall is accidentally built skew or encroaches upon the adjacent property to circumvent an obstruction such as having to avoid cutting down a tree. If the property owners intend selling either property, this fact would have to be disclosed to a potential buyer. This encroachment would either have to be rectified by physically removing the encroachment or regulating the situation by agreement between the two owners. If an agreement is reached, it should be registered against the properties in the form of a notarial cession of encroachment servitude, which will make it enforceable against future owners.
This entitles the dominant owner to have a balcony or other projection over the neighbour’s property. The servitude will regulate the size of the projection and the obligations of maintenance of the structure.
Creation of a servitude
A written agreement between the parties. The rights and obligations have to be negotiated and it often involves a market-related price being paid as the granting thereof adds value to the dominant property
A surveyed diagram may be necessary
A notarial deed of cession will have to be signed and executed before a notary public and be registered at the deeds office.
If the servient property is mortgaged, the consent of the bank would have to be obtained.
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)