Servitudes & Restrictive Conditions (Ch. 17)

Question 1

Is ownership absolute or unlimited?

Answer 1

No, it is never absolute or unlimited.

Question 2

Is there a limited number of categories of real rights?

Answer 2

The number of categories of limited real rights is not restricted in South African law.

Question 3

Define ‘servitude’

Answer 3

A servitude is

a. A limited real right to the movable or immovable property of another person (owner,
b. Which grants the entitled person (holder of the servitude) certain specific entitlements (usually the entitlements of use and enjoyment)
c. And these entitlements limit the entitlements of the owner in respect of the thing in one way or another.

Question 4

If a registered servitude is cancelled by mistake, what happens? Cite caselaw.

Answer 4

It is still valid and enforceable - Cape Explosives Works v Denel.
- The reason for this is the negative registration system in SA, which does not guarantee the correctness of the registered date or document,s

Question 5

Name the 5 characteristics of servitudes

Answer 5

1. The holder of the servitude acquires a limited real right in the property of another legal subject, which he can protect and enforce with a real remedy (the actio confessoria). The servitude is enforceable against the owner of the property and all his successors in title.
2. The holder of the servitude cannot expect the owner of the property to do anything positively as a result of the servitude. The servitude grants only entitlements of use and enjoyment to the holder of the servitude which must be respected and tolerated by the owner.
3. No person can acquire a servitude over his own property.
4. The holder of a servitude may not transfer the servitude to another person (Lorentz v Melle)
5. The entitlements must be exercised reasonably by the holder of the servitude.

Question 6

What are the 2 categories of servitudes?

Answer 6

1. Praedial servitudes

2. Personal servitudes

Question 7

Define ‘praedial servitude’

Answer 7

A praedial servitude is

a. a limited real right
b. in the land of someone else (the servient tenenment)
c. which grants the holder of the servitude certain entitlements of use and enjoyment
d. in his capacity as owner of the dominant tenement.

Question 8

What are the characteristics of a praedial servitude? (10)

Answer 8

1. It can be granted only iro immovable property
2. There are always two pieces of land involved, namely a dominant and a servient tenement.
3. The limited real right vests in the holder of the servitude in his capacity as owner of the dominant tenement (and not in his personal capacity)
4. The burden on the servient tenement is transferred is transferred automatically to the new owner when the land is transferred. It is therefore a burden on the property and enforceable against the owner of the servient tenement and his successors in title.
5. In principle praedial servitudes are perpetual, but can be made subject to a resolutive condition or term.
6. The dominant and servient tenements must be located next to or near each other.
7. A benefit which increases the valu and usefulness of the dominant tenement must best in the owner of the dominant tenement and his successors in title.
8. In principle servitudes are indivisible.
9. The entitlements of the servitude holder can never be such that the owner of the servient tenement is compelled to perform a positive act.
10. It usually comes into being by registration n the deeds registry as a conditional clause in the title deed of the servient tenement. It can also be created by means of a notarial deed registered in the deeds registry and by making an endorsement against the title deed of the servient tenement.

Question 9

What are the 3 categories of praedial servitudes?

Answer 9

A distinction is made between

a. Rural praedial servitudes
b. Urban praedial servitudes
c. Statutory praedial servitudes

Question 10

Give 3 examples of Rural Praedial Servitudes

Answer 10

1. A right of way to drive, walk, or herd cattle.
2. A right to lead water and to draw water.
3. A right to fetch wood.

Question 11

Give 3 examples of Urban Praedial Servitudes

Answer 11

1. The right of the holder that his building may be supported by a building on the servient tenement
2. The right to have pipes or electric cables installed over the servient tenement
3. The right to influence the normal flow of rain water and to divert it to the servient tenement

Question 12

Give 1 example of Statutory Praedial Servitudes

Answer 12

1. The right to dam, drain, store and lead water ito National Water Act

Question 13

Define ‘personal servitude’

Answer 13

A personal servitude is

a. a limited real right
b. to the movable or immovable property of someone else
c. which grants entitlements (use and enjoyment rights) iro the thing
d. to the servitude holder in his personal capacity.

Question 14

What are the characteristics of personal servitudes? (7)

Answer 14

1. A personal servitude accrues to the holder of the right in her personal capacity, but as it is a limited real right it must meet the requirements for the creation and exercise of limited real rights.
2. Since it accrues to the servitude holder in her personal capacity, the servitude is not transferable. (Willoughby’s Consolidated Co)
3. Although it vests in the holder of the servitude in her personal capacity and is not transferable, it is not a creditor’s right but a limited real right. The reason is that the entitlements that the holder can exercise are burdens on the property; and limit the entitlements of the owner and his successors in title and all third parties.
4. A personal servitude can be granted iro movable or immovable property. Since it vests in the holder in her personal capacity, there is no dominant tenement.
5. In the case of a servitude over movable property the holder of the servitude may, usually, not consume the property but must return it after termination of the servitude with its essence intact (salva rerum substantia), taking normal wear and tear into consideration.
6. In the case of movable property, a personal servitude can be granted orally. Usually corporeal movable things must be delivered to the holder of the servitude.
7. Personal servitudes terminate at the death of the holder of the servitude or non-completion of the term for which the servitude was granted. In the case of the servitude holder being a legal person, the personal servitude lapses after 100 years if o specific term is set.

Question 15

Name the 3 categories of personal servitudes

Answer 15

1. A distinction is made between
   a. Common law personal servitudes (usufruct, use, and habitation)
   b. Servitudes which resemble real servitudes but which best in the holder in his personal capacity
   c. Statutory personal servitudes.

Question 16

Define ‘usufruct’

Answer 16

Usufruct is a person servitude which, as a limited real right, grants the holder the right to use someone else’s property (including the fruits) and to return the thing substantially intact to the owner on termination of the usufruct.

Question 17

Define ‘use’

Answer 17

Use is a limited real right ito which the holder of the right acquires the entitlement to use the property for the benefit of himself and his household while keeping it substantially intact.

Question 18

Define ‘habitation’

Answer 18

Habitation is a limited real right ito which the holder of the right is entitled to occupy a home belonging to the owner while leaving it substantially intact.

Question 19

List the presumptions/rules given by the court in cases when there is doubt whether a servitude is praedial or personal. (6)

Answer 19

In the case of De Aar Hotel v Jonordon Investments:

1. The general rule is that servitudes should be interpreted restrictively. The onus of proof is on the person alleging that a servitude exists to prove it on a balance of probabilities, since there is a rebuttable presumption that ownership is unencumbered.
2. Ito the rules of interpretation, words are given their ordinary, grammatical meaning.
3. If there is doubt as to the nature of the agreement between the parties (creditor’s rights or registration), the rebuttable presumption that they intended to create a personal right (the least encumbering interpretation) applies.
4. If doubt whether praedial or personal, the rebuttable presumption that a personal servitude was created (least encumbering interp.) applies.
5. The least encumbering interpretation is followed where there is uncertainty - De Kock v Hnel.

Question 20

What are the criterion of reasonableness?

Answer 20

• The holder of the servitude must exercise the entitlements within reasonable bounds (civilter modo), while the owner must tolerate it within reasonable bounds,
• The yardstick is the way in which the reasonable man (bonus paterfamilias) would have acted.
• The balancing of the interests of both parties is, therefore, always the criterion.

Question 21

Due to the balancing of both parties’ interests, what are the implications? (3)

Answer 21

1. The owner of the land is entitled to use his land in the normal manner, provided this is not in conflict with the entitlements of the servitude holder (De Witt v Knierim).
2. The holder of the servitude is entitled to exercise his entitlements within reasonable bounds (Brink v Van Niekerk). However, if there is a conflict of interest, the interests of the holder will have precedence over that of the owner, subject to the criterion of reasonableness..
3. Where there is no uncertainty in the wording of a servitude regarding the exercise of specific rights of use and enjoyment, such rights will not be in contradiction with the civiliter modo principle (De Kock v Hnel).

Question 22

What are the 4 ways of acquisition of servitudes?

Answer 22

1. Registration of praedial and personal servitude iro immovable property ito the Deeds Registries Act
2. Delivery in the case of personal servitudes iro movables
3. Statutory establishment
4. Creation by court order

Question 23

Which legislative provisions apply to prescription of servitudes?

Answer 23

Sec 2(1) of the Prescription Act 1943 and sec 6 of the Prescription Act 1969.

Question 24

When would a court order be needed for sevitudes?

Answer 24

• When a servitude is created by prescription
• A person who neglects to register a servitude arising from an agreement
• The court also have the power to change the route of a fixed-route servitude even against the will of the owner of the servient tenement
• The owner of land who does not have access to a public road, can apply to the court for a court order to grant a way of necessity.

Question 25

Define ‘a way of necessity’

Answer 25

A landowner who has no or insufficient access to a public road, can acquire a way of necessity over neighbouring land to the nearest public road by means of a court order.

Question 26

Discuss ‘claim to way of necessity’

Answer 26

• A landowner of landlocked land is entitled to access to the nearest public road over the land of neighbour.
• This also applies where available alternative routes are not economically satisfactory.
• It is not relevant whether the reason for the way of necessity arose recently or whether it has existed for some time.

Question 27

Discuss ‘the nature of the way of necessity’

Answer 27

• The court can issue an order that the way of necessity may be used only in emergency situations (ius viae precario) or on a continuous basis (ius viae plenum).

Question 28

Discuss ‘determination of land over which way of necessity runs’

Answer 28

The general principle 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.

Question 29

Discuss ‘determination of route and width of way of necessity’

Answer 29

• The principle is that the route that causes the least damage to the owner of the encumbered land should be followed.
• Both landowners’ interests must be taken into consideration to determine the route and width of the road.

Question 30

Discuss ‘compensation’

Answer 30

Compensation is not usually payable in the case of ius viae precario, but in the case of ius viae plenum compensation must usually be paid.

Question 31

Discuss ‘registration’

Answer 31

Registration is not required for the real effect of a way of necessity that is created by court order. But it is recommended for legal certainty.

Question 32

Discuss ‘changed conditions’

Answer 32

The route of the servitude road can be changed by an order of court without the agreement of the parties due to changed conditions. (Linvestment v Hammersley)

Question 33

Which remedies are available to the HOLDER of a servitude? (5)

Answer 33

1. The actio confessoria is a real remedy by means of which the holder of a servitude can prohibit any limitation or impediment to the reasonable exercise of his entitlements by means of a court order. Compensation for damages can also be claimed with this action.
2. An interdict
3. Declaratory order
4. A spoliation order to effect restoration of control
5. A delictual claim for damages

Question 34

Which remedies are available to the OWNER of the ENCUMBERED property? (4)

Answer 34

1. The actio negatoria is an action against the holder of the servitude who exceeds his entitlements or any other person who wrongfully claims entitlements ito a servitude.
2. An interdict
3. Declaratory order
4. A delictual claim for damages

Question 35

Name the 6 ways in which a servitude may be terminated

Answer 35

1. Fulfilment of condition or term
2. Merger
3. Abandonment
4. Impossibility
5. Prescription
6. Expropriation