SERVITUDES NLLB 206

SERVITUDE
❑A servitude is a (limited) real right which entitles its holder either to the use and
enjoyment of another person’s property (personal servitude) or to exercise certain
entitlements flowing from the holder’s right of limited ownership over another
property (praedial servitude)
❑It is a limited real right on the property of another;
which grants the holder certain specific entitlements (positive servitude)
which limits the owner’s capacities (negative servitude)
CLASSIFICATION OF
SERVITUDES
1. A personal servitude: attaches to a particular person )E.g. A in his will,
gives a right to his daughter Grace, to live in his house until she marries or
reaches the age of 35, whichever is earlier) and;
2. A praedial servitude: attaches to the land. E.g. owner of farm A grants a
right of way over his/her land to owner of farm B, which is adjacent to his/her
land.
1. PERSONAL SERVITUDE
Definition
Limited real right on movable or immovable
property of another person
which grants holder entitlements (use and enjoyment) in
respect of the thing
in his personal capacity as the servitude holder.
PERSONAL SERVITUDE
Common law personal servitudes:
∙ usufruct (ususfructus)
∙ use (usus)
∙ habitation (habitatio)
(I) USUFRUCT
(USUSFRUCTUS)
Definition
limited real right on another’s movable or immovable thing
which grants the servitude holder a right to use & enjoy that thing and
its fruits
with obligation to return thing substantially intact to the owner after
termination of usufruct
Personal nature
-right accrues to holder in personal capacity
-it cannot be transferred
-can however transfer entitlements - but will be terminated if usufruct is terminated
USUFRUCT

Entitlements
right to use & enjoy thing
becomes owner of natural fruits
becomes owner of civil fruits
USUFRUCT
Duties
thing must be returned substantially intact
must use thing reasonably & maintain thing with reasonable care
must pay ordinary expenses, but can claim extraordinary expenses
from owner
if required by owner must provide security as guarantee that thing
will be returned intact
must compile an inventory of all movable things subject to usufruct
(II) USUS
▪Gives person the right to use a property, but he may not take fruits beyond family’s
daily needs.
▪He may possess and use the thing to which the right relates if it is a movable and
occupy it together with her family and visitors if it relates to land.
▪The holder may take the fruits of the thing for his daily needs as well as for the daily
needs of the household, but no more than that.
▪The holder cannot sell any fruits, nor may he grant a lease in respect of the building.
▪His use must be without detriment to the substance of the property.
(III) HABITATIO
▪Servitude of habitation confers on its holder the right to dwell in the house of
another together with his family without detriment to the substance of the
property.
▪Unlike a servitude of use, it carries with it the right to grant a lease or
sublease to others.
2. PRAEDIAL SERVITUDES
DEFINITION
▪Limited real right on the land of another person → servient tenement
which grants holder certain entitlements of use and enjoyment
in his capacity as owner of dominant tenement
Characteristics of praedial servitude
▪can only be granted in respect of immovable property
▪two pieces of land involved: dominant and servient tenement
PRAEDIAL SERVITUDES
Rural servitudes:
servitudes of way
servitudes of water- drawing water from a fountain/dam
servitude of pasturage/grazing land

Urban servitudes:
Right of holder of a servitude that his building may encroach on the boundary of the two tenements
right to have pipes and electrical cables installed over the servient tenement (above or below the
ground)
servitude of light and view
servitude of water
RIGHTS AND DUTIES OF THE
PARTIES
▪A servitude must be exercised civiliter modo: This means the owner of the dominant
tenement must exercise his rights with due regard given to rights and interests of the
servient owner.
▪Thus, the servitude must be exercised in a proper and careful manner so as to cause the least
inconvenience to the servient owner.
See-Kakamas Bestuursraad v Louw 1960(2)SA202(A)
Court:
The principle of civiliter modo requires of the exerciser of a right of servitude no greater
degree of care than that of the bonus paterfamilias (reasonable man- owner to tolerate
servitude holder’s exercise of right within reasonable bounds).
On an improper exercise of a servitude the holder will be held liable if the damage is caused
by dolus or culpa. A person to whom no dolus or culpa is attributed is not deemed to have
caused the damage.
PIETERSE V DU PLESSIS
Court:
▪A servitude conflicts with the freedom of the owner of the servient tenement to use his property as he deems
fit and thus servitudes are construed strictly, so as to impose the least possible burden on the servient
tenement.
▪If any doubt as to its existence, it’s presumed not to exist…the one who alleges its existence has to prove on a
balance of probabilities. There is a presumption that ownership is unecumbered.
▪If any doubt as to whether it’s personal or praedial, it’s presumed a personal servitude…..the restrictive or
least encumbering interpretation preferred. This interpretation preferred only if there is uncertainty.
▪If the owner of the servient land seeks to restrict the owner of the dominant tenement in the exercise of his
rights, he may apply to court for a declaration of rights.
▪The same applies to the owner of the dominant tenement if the owner of the servient property exceeds his
rights.
▪If all the requirements have been met the specific duties may be enforced by way of an interdict.
▪According to the general rules, either party is entitled to claim damages if the other party exceeds his rights
provided that he can prove patrimonial loss.
 CREATION OF A SERVITUDE
❑Registration for praedial servitudes
❑Court order (way of necessity)
❑By statute
❑ Prescription
❑Agreement in the case of personal servitudes in respect of
movables
PRAEDIAL SERVITUDES
▪REGISTRATION OF PRAEDIAL SERVITUDES
▪Only an owner of a property may burden it with a praedial servitude. To be effectively
(‘safely’) created, the servitude needs to be registered in terms of the Deeds Registries Act.
See Sec 57, 58, 59.
57. Creation of servitudes
(1) Save as is provided in any other law, a servitude in perpetuity or for a limited period
may, subject to subsections (2), (3) and (4), be created—
(a) by a deed prepared in accordance with section fifty-nine or
(b) in a deed of grant or transfer of land where it encumbers—
(i) the land transferred; or
(ii) other land of which the transferor is the owner in favour of the land transferred.
PRAEDIAL SERVITUDES
(2) Before registering a servitude which is being created in terms of paragraph (b) of subsection
(1), a registrar shall, where the servitude which is being created encumbers the land transferred,
require the acceptance in writing of the owner of the land in favour of which or the person in whose
favour that servitude is being created, if that owner or person is not the transferor:
Provided that, where the servitude is being created in favour of the public or of all or some of the
owners or occupiers of stands or lots in a township, the registrar may, if in his opinion it is
impracticable for such persons to signify their acceptance of the servitude, dispense with such
acceptance.
(3) In registering any servitude which is being created in terms of subsection (1), a registrar shall
endorse the title deed of— the land encumbered thereby; and (ii) any land in favour of which that
servitude is being created; or
(4) If the land which is to be encumbered by a servitude created in terms of subsection (1) is
mortgaged or subject to any other real right with which the servitude may conflict, the registrar shall
require the written consent of the holder of the right and the production of the bond or other
registered deed in which the right is registered or recorded.
PRAEDIAL SERVITUDES
58. Requirements for preparation and submission of deed of servitude
(1) A deed of servitude shall—
(a) contain a full description of any land against or in favour of which the servitude is to be registered or
endorsed, including the numbers and dates of the title deeds, and the full names of the grantor and, where
practicable, the grantee of the servitude; and
(b) be executed by the owner of the land encumbered by the servitude and the owner of the land in favour of
which or the person in whose favour the servitude is being created: Provided that, where the servitude is being
created in favour of the public or of all or some of the owners or occupiers of stands or lots in a township, the
registrar may, if in his opinion it is impracticable for such persons to execute the deed, dispense with such
execution of the deed; and
(c) be attested by a notary public: Provided that this paragraph shall not apply to a deed of servitude such as
is referred to in section sixty-three if the signature of each person executing the deed is witnessed by two
competent witnesses or by a commissioner of oaths and the signature of each witness or the commissioner of
oaths, as the case may be, has been affixed thereto in the presence of that person.
(2) Two signed originals or a signed original and a copy certified by notary public shall be submitted to the
registrar for registration
SERVITUDES
59. Restriction on registration of certain personal servitudes
No personal servitude of usufruct, usus or habitatio or any transfer or cession thereof purporting to extend
beyond the lifetime of the person in whose favour it is created shall be registered……..not eternal by nature
as they burden a person not land.
60. Cancellation of registration of servitude
cancellation of the registration of a servitude in pursuance of an agreement between the owner of the land
encumbered thereby and the holder of the servitude shall be effected by notarial deed.
If a servitude is mortgaged or the dominant tenement is mortgaged, the consent in writing of the holder of the
bond to the cancellation of the registration of the servitude shall be produced to the registrar.
Cancellation of the registration of a personal servitude may, subject to the agreement constituting the
servitude, be effected by lodging with the registrar a written consent by the holder of that servitude for the
cancellation of the servitude.
If for any reason a servitude has lapsed, the registrar shall, on written application by the owner of the land
encumbered thereby, accompanied by proof to his satisfaction of the lapse of the servitude and by all the
deeds affected thereby, note on such deeds that the servitude has lapsed.
PRAEDIAL SERVITUDES
▪REGISTRATION OF PRAEDIAL SERVITUDES
▪If not registered, a servitude will only bind successors in title if:
-they are gratuitous successors;
-the servitude is acquired by prescription;
-they are onerous successors with knowledge of the servitude.
PRAEDIAL SERVITUDES
Unregistered servitudes
▪A duly executed agreement to grant a servitude (or so called unregistered servitude)
gives rise to a real right only when it has been registered.
▪Prior to the servitude being registered, a third party, for example, a purchaser of the
servient property without notice of the servitude, is therefore not bound to recognise
it.
▪The agreement will normally be enforced against third parties who have actual
knowledge of it.
PRAEDIAL SERVITUDES
COURT ORDER
Via necessitatis: Way of Necessity
▪A way of necessity - granted in respect of land without access to public roads, etc.
▪The way of necessity does not depend on the consent of the owner of the servient tenement.
▪These servitudes may be claimed as of right by an owner of land who is closed in by other
land to such an extent that he has no direct or reasonably sufficient access to a public road
and is therefore compelled to cross adjoining privately owned land.
▪Court can decide if the road is to be use continuously or in emergency situations
▪The general principle is that the nearest route causing the least inconvenience and damage
to the owner of the encumbered land should be preferred.
▪Court to decide if compensation is payable….usually payable if continuous not in
emergency
WAY OF NECESSITY
Tsikwa v Nyagura And 2 Others HC 2021 : The applicant was allocated a piece of
immovable property in 2006 under the Land Reform Programme. The first and second
respondents are the owners of Plot 2 of Rufaro Farm in equal and undivided shares.
Applicant approached the court seeking a servitude of a right of way to access his plot
which is land locked and inaccessible from the main road. To access his plot the applicant
has to pass through Plot 1 or Plot 2. The respondents opposed the application on the basis
that the applicant already has access to his plot through another plot namely Plot 1. The
applicant argued that the best route to his plot would be through the first and second
respondents’ plot.
The issue that falls for determination in this matter is whether or not the applicant is entitled
to the servitude of a right of way. It is settled that for the remedy of servitude of right of
way to be granted there are requirements which the dominant owner must establish. Firstly
that the dominant owner is landlocked and secondly that it is necessary to be accorded the
servitude right of way (Van Ransburg v Coetzee 1979 (4) SA 655)
WAY OF NECESSITY
Entry through Plot 1 would entail encroaching on the flower beds and doorstep of the
owner. According to the applicant, Plot 1 has since been fenced barring passage
through. The respondents have in turn locked their gate thus rendering the
applicant’s landlocked plot inaccessible. What the applicant seeks is the passage by
Plot 2 that is the respondent’s plot and this would not create an undesirable picture of
the applicant seeking access to his land locked property through more than one
intervening properties.
The other suggested way of entry through Plot 1 involving encroaching on the
owners doorstep appears not feasible thus boosting the necessity of access through
Plot 2. In my view it is not only convenient but necessary that the applicant gets the
right of way to access its landlocked plot as there is no other existing adequate way.
The route via Plot 1 is not available and has been displayed as inadequate
WAY OF NECESSITY
In this case the applicant cannot operate without getting right of way from the neighbouring
plots. It is apparent the degree of interference on property and privacy on Plot 1
comparatively creates necessity to seek passage through the only reasonable and feasible
route through Plot 2 that is respondent’s property. In an event Plot 1 by fencing has already
barred the applicant giving rise to the present application.
It is settled that the right of necessity as a praedial servitude must be established in respect
of two pieces of land namely the dominant tenement and the servient tenement. Both lands
must be owned by different persons as in this case. The properties must be neighbouring
properties as it is in this case, the applicant’s Plot and respondent’s plots are neighbouring
pieces of land. From the circumstances the applicant’s argument is that it is necessary that
he be given the right of way servitude through respondents’ Plot so that he may proceed to
his landlocked Plot without difficulty to himself and the owner of Plot 1 since the right of
way via the latter is cumbersome and inconvenient as it passes through the owners doorstep.
WAY OF NECESSITY
Once property is landlocked the servient tenement’s property will be burdened by giving right of way of
necessity. In situations where parties do not agree then the courts intervene. Once all the requirements of
servitude of right of way are met then the court may direct the route to be traversed. In this case it has been
shown on a balance of probabilities that:
1. The applicant’s land that is the dominant tenement is land locked.
2. There are two tenement that is the dominant tenement (applicant’s property) and servient tenement
(respondents’ property) owned by different people.
3. The two properties are immovable properties
4. The servient and dominant tenement are neighbouring properties.
5. The utility is capable of being transferred
6. The benefit sought is permanent in nature.
▪All the requirements have been met and the applicant is willing to erect the gate at its own expense.
▪The right of access shall only be to have access of the main road.
 WAY OF NECESSITY
6 factors which fall for consideration in assessing whether or not there is necessity for the
right of way:
▪ The land in question has to be land locked.
▪The tenement that is dominant and servient must be owned by different people.
▪The properties must be immovable and in particular land.
▪The servient and dominant tenements must be neighbouring properties.
▪The utility must be capable of being transferred and the benefit must be permanent in
nature.
▪The benefit sought is permanent in nature
❑In the present case it is not in contention that the properties are neighbouring properties and
that the applicant’s property is landlocked. That the benefit sought is permanent also does
not seem to be in dispute. The servitude of right of way sought appears capable of being
transferred.
WAY OF NECESSITY
The purpose of the servitude of right of way is in simple terms to allow landlocked property
owner to access his property through the reasonable route.
R. W Lee (1915) in a textbook of Roman – Dutch Law defines servitudes thus: “A
servitude is a real right enjoyed by one person over or in respect of the property of another
whereby, the latter is required to suffer the former to do, or himself to abstain from
doing, something upon such property for the former’s advantage”
What runs through the definition of a servitude is clarity that another person has a right in
the property of another for necessity.
The servitude right certainly does not take away or diminish the real right of the owner.
E.g abstain from doing (if granted someone a servitude/right of cutting firewood or
pastures, you cannot lock your gates making the place inaccessible or destroying them
by lighting a fire on the wood/pastures). If granted the water right to someone, you
have to allow them access and draw water, not close the source of water.
PRESCRIPTION ACT
▪Personal and praedial servitudes can be established through prescription
▪If a person has exercised rights and powers of servitude openly and as though he were entitled to do so for uninterrupted
period of 30 years
-provisions for interruption and suspension also applies

Positive servitude
-exercise of entitlements which person who has such a right to such a servitude is entitled to exercise
Negative servitude
problematic
-mere fact that owner has refrained from doing something for 30 years not enough
-requires a formal prohibition from owner of dominant tenement
-and subsequent acceptance by owner of servient tenement
Ellis v Laubser 1956 (4) SA 692 (A)
 TERMINATION OF
SERVITUDES
General
▪praedial servitudes are eternal
▪personal servitudes normally terminated at death of holder
▪servitudes can be terminated in certain circumstances:
a. Impossibility
b. Fulfilment of a term/condition
c. Agreement
d. Abandonment
e. Merger
TERMINATION OF
SERVITUDES
a) Impossibility
▪thing becomes res extra commercium (property compulsorily acquired for public
interest)
▪thing is destroyed
▪nature changes to such extent that exercise of entitlements becomes impossible →
utilitas requirement (servitude of water, source has dried and no water)
b) Fulfilment of condition or term
▪if condition is fulfilled
▪if period ends
TERMINATION OF
SERVITUDES
c) Agreement
▪Parties agree the servitude will terminate

d) Abandonment
▪holder can explicitly or implicitly abandon servitude in favour of owner
TERMINATION OF
SERVITUDES
e) Merger
▪requirement of 2 pieces of land
▪cannot have servitude over one’s own property
▪if owner of dominant tenement becomes owner of servient tenement → servitude is
terminated
-Just like when renting property and you end up buying it, you cant be a tenant in
your own property
REMEDIES
1. Servitude holder
1. Interdict (negative/positive servitude)
removal of any interference (prohibitory interdict), mandatory interdict
2 Mandament van spolie to effect restoration of control
3. Declaration of rights
4. Delictual claim for damages
REMEDIES
2. Owner of servient tenement
-Interdict
-Declaration of rights
-Delictual claim for damages
Brink v Van Niekerk and Another
The first respondent was the holder of a servitude of right of way over applicant’s
farm. The first respondent granted permission to another neighbour of hers, the
second respondent to use the same road over applicant’s land in order to reach the
provincial road.
Applicant applied for an interdict against first respondent to prevent her from
allowing second respondent and anyone else to use the road. Applicant averred first
respondent wasn’t using her servitude reasonably if she allowed others to use the
road for their own purposes.
-The general requirement that the holder of a servitude must exercise that servitude
reasonably implies that the servitude holder should not place a greater burden upon
the servient tenement.
4.1 Discuss the characteristics of a praedial servitude. (5)
4.2 With personal servitudes the distinction can be drawn can be drawn
between the three (3) types mentioned below. Briefly discuss each.
4.2.1 Usufruct (2)
4.2.2 Habitatio (2)
4.2.3 Use (2)
6.1 Indicate whether the following statements are true or false:
6.1.1 A servitude may be registered by means of a court order. (1)
6.1.2 The general rule exists that servitudes have to be interpreted as widely as
possible. (1)
6.1.3 Neither a personal nor a praedial servitude can be established through
prescription. (1)
Which of the following is NOT a characteristic of a personal servitude?
A It accrues the holder in his personal capacity.
B It is not transferable.
C In case of movable property it can be granted orally.
D It can only be granted over movable property.
 Thandi is the owner of the farm ”Happiness”, in the Boshof-region. Her neighbour is
Thabo who is the owner of the farm, “Pretty View”. Thandi has a contract of lease with
Thabo in terms of which she can use a portion of the farm for grazing purposes. Thabo has
the right of undisturbed use of the road over Thandi’s farm. Which of the following
statements are FALSE?
A If Thabo’s right of undisturbed use of the road was granted in his capacity
as owner of the farm “Pretty View”, it would constitute a limited real right.
B If Thabo’s right of undisturbed use of the road was granted in his
personal capacity, it would constitute a creditor’s (personal) right.
C Thandi’s right to let her animals graze will be transferred on the title deed
f the property to a new owner if she sells her farm.
6.1 Indicate whether the following statements are true or false:
6.1.1 A servitude may be registered by means of a court order. (1)
6.1.2 The general rule exists that servitudes have to be interpreted as widely as
possible. (1)
6.1.3 Neither a personal nor a praedial servitude can be established through
prescription. (1)
5.1 Bryan Habana has been running 5 kilometers every day for the past 15 years
across his neighbour’s farm. Can a servitude be established in such a manner by use
or abuse of the property? Yes or No? Provide a brief reason for your answer. (1)
5.2 Usufruct is a personal servitude. Is it transferable to a third? Yes or No? Provide
a brief reason for your answer.1
5.3 When interpreting a servitude to determine whether it is personal or praedial in
nature, certain rules and presumptions apply as indicated in the case of Hotel De Aar
v Jonordon Investment 1972 (A). Discuss these rules or presumptions. (8)
5.4 Builders Warehouse in Bloemfontein is your client that purchased a piece of land
that is not adjacent to the main road. An access road must be constructed to provide
access to the entrance of the property. How would you go about ensuring access for
your client? What would your advice be?
. The owner of land who does not have access to a public road can apply to the court to grant a way of necessity. Discuss
the applicable guidelines as laid down in Van Rensburg v Coetzee 1979 (A). (7)
Guidelines laid down in Van Rensburg v Coetzee re a way of necessity:
1.A claim to way of necessity: a landowner of landlocked land is entitled to access to the nearest public road over the land
of a neighbor.
[Link] nature or way of necessity: court can, depending on circumstances, issue an order that the way of necessity may be
used only in an emergency or on a continuous basis.
[Link] of land over which way of necessity runs: general principle that applies is that the nearest route causing
the least amount of damage or burden to the owner of the encumbered land, must be indicated as way of necessity
[Link]: usually not payable in case of emergency situations but in the case of continuous basis compensation
usually paid
5Registration: not required for the real effect of a way of necessity that is created by way of court order – for legal
certainty however registration recommended.
[Link] conditions: a route of the servitude road can be changed by an order of court without the agreement of the
parties due to changed conditions
Mr Greenfingers has recently bought a dairy farm in the Karoo and was surprised to
see his neighbour, Mr Sourgrapes, driving over a portioof Mr Greenfinger’s farm on
an almost daily basis. Upon investigating this, it became apparent to Mr
Greenfingers that Mr Sourgrapes was leading water to his farm by means of an
irrigation system which stretched right across Mr Greenfinger’s farm. When Mr
Greenfingers approached Mr Sourgrapes to ask him why he had not first asked
permission to do so, Mr Sourgrapes exploded, telling Mr Greenfingers that if he had
read the title deed to his own farm he would have seen that Mr Sourgrapes had a
servitude, entitling him to do so. Mr Sourgrapes said that he did not need Mr
Greenfingers’ permission at all and if he didn’t know this, he should go back to
school. Mr Greenfingers is angry about this rude behaviour and approaches you, as
his attorney, to advise him. Explain to Mr Greenfingers the meaning of servitude and
clearly set out the differences between real and personal servitude.