Servitudes

Servitudes give a person other than the legal owner of immovable property real rights over the property. A person who does not own a property does not usually have the right to build on the property, use the water on the property, or even drive over the property. These rights however can be registered against the title deed of a property if the owner wishes to grant someone else the right to do something in respect to the property. These rights are called "limited real rights" or servitudes. Servitudes also restrict the owner's use of his immovable property, because he/she cannot do things that will impede or interrupt the other person from exercising their limited real rights.

Examples of Servitudes

One of the most common examples of servitudes, are rights of way in favour of a neighbour. A right of way gives that neighbour the right to cross the property. Usually there is a specific road or track that is assigned for this right of way.

The government also relies on servitudes in order to erect and maintain power lines and roads.

Some farms have servitudes or registered in favour of neighbouring farms, allowing access to and use of water.

Residential erven often have servitudes that allow the local municipality to provide water, electricity and sanitation services to neighbouring properties in the area
Different types of servitude.

There are two main types of servitudes, namely personal servitudes and praedial servitudes.

A personal servitude is a limited real right in favour of a specific person, where as a praedial servitude is a registered real right in favour of a person in his/her capacity as the owner of a specific property. For example:

A personal servitude is granted in favour of someone in their personal capacity, thereby allowing only them to hold limited real rights over a property for the span of his/her lifetime. Personal servitudes are not passed on to the new owners when the holder of the servitude sells his/her own property.

A praedial servitude is granted to someone in their capacity as the owner of the neighbouring property, If the holder of the servitude sells their own property, the servitude is passed onto the new owner.

South African property law provides that a property is always sold subject to the servitudes and other real rights contained in the title deed. Servitudes or limited real rights therefore stay binding on a new owner regardless of whether they were aware of them when they bought the property. The holder of a limited real right has to specifically agree to the cancellation of a servitude or limited real right for them to no longer be binding. It is therefore very important when buying a property to find out what servitudes if any, you will be subject or entitled to.