How to Avoid Servitude Problems
An example of a servitude problem in property development
17 September 2021
“I applied to my municipality to have the building plans for the extension of my garage approved. The municipality rejected my proposed extension on the grounds that it would be constructed over a servitude registered against my title deed in favour of the municipality. What is servitude? Can I have it removed?”
What is a Servitude in South Africa?
A “servitude” is a limited real right registered in the Deeds Office against the title deed of the property of a person in favour of another person or entity. The holder of the servitude (right) will therefore be entitled to exercise some right on the property of another or prohibit the owner of the property from exercising some of his ownership rights.
Personal Servitude vs Praedial servitudes
A distinction can be made between personal servitudes and praedial servitudes, of which the most important difference is that 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 commonly known personal servitudes are a usufruct, right to use, or the right to occupy the property.
A praedial servitude on the other hand is a right that attaches to the property itself (and not to a person) and 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. The most commonly known praedial servitudes are a right of way, pipeline servitude, electrical substation servitude, and so forth.
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 consideration payable, is usually in the form of a lump sum, but the parties are free to agree on a monthly or quarterly payment, depending on the type of servitude.
Registration of Servitudes
The general rule is that both personal and praedial servitudes must be registered against the title deed of the property, mostly 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.
After registration in the Deeds Office the servitude forms part of the conditions contained in the title deed of the property and can mostly 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 the death of the holder thereof.
In your situation it would be advisable to contact your attorney to help you ascertain whether a servitude is registered against your property and to identify the type of servitude as well as any steps you can take to have the servitude removed.