Flashcards in Servitudes & Restrictive Conditions (Ch. 17) Deck (35)
Is ownership absolute or unlimited?
No, it is never absolute or unlimited.
Is there a limited number of categories of real rights?
The number of categories of limited real rights is not restricted in South African law.
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.
If a registered servitude is cancelled by mistake, what happens? Cite caselaw.
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
Name the 5 characteristics of servitudes
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.
What are the 2 categories of servitudes?
1. Praedial servitudes
2. Personal servitudes
Define 'praedial servitude'
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.
What are the characteristics of a praedial servitude? (10)
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.
What are the 3 categories of praedial servitudes?
A distinction is made between
a. Rural praedial servitudes
b. Urban praedial servitudes
c. Statutory praedial servitudes
Give 3 examples of Rural Praedial Servitudes
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.
Give 3 examples of Urban Praedial Servitudes
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
Give 1 example of Statutory Praedial Servitudes
1. The right to dam, drain, store and lead water ito National Water Act
Define 'personal servitude'
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.
What are the characteristics of personal servitudes? (7)
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.
Name the 3 categories of personal servitudes
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.
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.
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.
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.
List the presumptions/rules given by the court in cases when there is doubt whether a servitude is praedial or personal. (6)
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.
What are the criterion of reasonableness?
- 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.
Due to the balancing of both parties' interests, what are the implications? (3)
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).
What are the 4 ways of acquisition of servitudes?
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
Which legislative provisions apply to prescription of servitudes?
Sec 2(1) of the Prescription Act 1943 and sec 6 of the Prescription Act 1969.
When would a court order be needed for sevitudes?
- 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.
Define 'a way of necessity'
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.
Discuss 'claim to way of necessity'
- 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.
Discuss 'the nature of the way of necessity'
- 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).
Discuss 'determination of land over which way of necessity runs'
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.
Discuss 'determination of route and width of way of necessity'
- 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.